# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Ar gued November 20, 2012 Decided February 8, 2013

No. 11

- 7018

E RIC S HEPTOCK AND C OMMITTEE TO S AVE F RANKLIN S HELTER

, O N BEHALF OF ITS MEMB ERS

, A PPELLANTS

v.

A DRIAN F ENTY

, I N HIS INDI VIDUAL AND OFFICIAL CAPACITIES

, ET AL

., A PPELLEES

Appeal from the United States District Court
for the District of Columbia (No. 1:09

- cv

- 00672)

George E. Rickman argued the cause and filed the briefs for appellants.

Stacy L. Anderson , Assistant Att orney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With her on the brief were Irvin B.
Nathan

, Attorney General, Todd S. Kim , Solicitor General,
and Donna M. Murasky , Deputy Solicitor General.

Befor e: R OGERS and T ATEL

, Circuit Judges , and

E DWARDS

, Senior Circuit Judge

.2

Opinion for the Court filed by Circuit Judge T ATEL

.

T ATEL

, Circuit Judge : This case stems from the closure of the Franklin Shelter, a n overnight facility for homeless men
in downtow n Washington, D.C. In two prior suits filed in the Superior C ourt for the District of Columbia

, former shelter
residents alleged that the closure violate d D.C. law and the
Fifth Amendment to the United States Constitution

. In a third case, filed in federal court and on appeal here, p laintiffs al lege
that the closure also violate d federal and D.C.

an tidiscrimination statut es. Because plaintiffs could have
raised these latter claims in the Superior C ourt cases , we affirm the district court’s dismissal on res judicata grounds.

I.

At the time the Franklin Shelter was operating

, approximately 2,200 single adults were chronically homeless
in the District of Columbia. See Second Am. Fed. Compl. ¶ 20 ; see also Nader v. Democratic National Committee , 567 F.3d 692, 6 94 (D.C. Cir. 2009) (“Because the district court granted defendants’ motion to dismiss, [plaintiffs’] allegations must be taken as true.” (internal quotation marks omitted) )

. Because the Franklin Shelter served as an emergency facility,
residents were perm itted to stay there only between 4 P.M. and 7 A.M. Although required to leave during the day,
residents could keep their personal belongings in small
lockers. Mirroring the District’s homeless population,
Franklin Shelter residents were disp roportionately African
American. See Second Am. Fed. Compl. ¶ ¶ 20, 28. Many suffered from psychological disorders and substance abuse problems

. See id. ¶ ¶ 24, 28.

In mid

- 2008, Mayor Adrian Fenty and the D.C. City Council began making plans to close the Fra nklin Shelter. On September 16 , the City Council passed the Franklin Shelter3

Closing Requirements Emergency Act of 2008, which required the m ayor to make certain detailed certifications before closing the facility. See D.C. Act 17

- 518. B efore signing the Emergency Act, h owever, the M ayor closed the
shelter and made none of the required certifications. See
S econd Am. Fed. Compl. ¶ ¶ 14

– 16

.

E victed residents were informed that their personal
b elongings had been moved to a homeless shelter in
Anacostia and that they could rec eive transportation there if they wished

. They were also encouraged to relocate to
shelters outside Northwest Washington

— the city’s rapidly gentrifying commercial and residential area

. See id. ¶¶ 14 , 28,
33

– 37. And to “mitigate any loss of shelter space

, ” i d. ¶ 38,

t he District created the Perma nent Supportive Housing Program to provide long

- term housing and services to the chronically homeless.

The Franklin Shelter closing sparked a flurry of litigation

. Specifically, fo rmer Franklin Shelter resident s

— incl uding named plaintiff Eric Sheptock

— and the Committee to Save
Franklin Shelter brought three separate suits, two in D.C. Superior Court and one in the United States District Court for
the District of Columbia

. Because the outcome of this case

turns on the application of res judicata, we describe each of
these suits in detail.

The first case, Sheptock I , was filed in D.C. Superior
Cour t on September 26, 2008, the day the Franklin S helter
closed. P laintiffs brought two D.C. law claims , as well as a Fifth Amen dment procedural due process claim premised on the District’s failure to provide advance notice and an opportunity to be heard before closing the shelter. Shortly
after initiating the case , plaintiffs filed a notice of dismissal,
which terminated the suit.4

While Sheptock I was pending, plaintiffs filed a second
suit

, Sheptock II

, in D.C. Superior Court

. The Sheptock II plaintiffs raised eight claims: a Fifth Amendment procedural due process claim; a Taking s Clause challenge to the appropriation of the forme r residents’ personal belongings; intentional infliction of emotional distress; conversion; negligence; and violation s of the Emergency Act , the Frigid Temperature Protection Amendment Act of 1988, D.C. Code § 4

- 753.01, and the Homeless Services Reform Act of 2005, D.C. Code § 4

- 754.22

. P laintiffs twice amended their complaint to add new facts and allegations concerning the
fal lout from the Franklin Shelter closure.

Significantly for our purposes , on March 9, 2009, the Sheptock II plaintiffs filed a m otion entitled “Motion to Stay Proceedings Pending Discovery and Pending Submission of
Federal Claims in the United States District Court for the
District of Columbia or in the Alternative Motion to Amend Complaint for Preliminary and Permanent Injunctions.” In this motion, plaintiffs notified the Superior Court that they would be bringing claims in federal court under the
Americans with Disabilit ies Act (ADA)

, 42 U.S.C. §§ 12101
et seq.

, the Fair Housing Act (FHA) , 42 U.S.C. § § 3601 et

seq. , and the D.C. Human R ights Act , D.C. Code § § 2

- 1401.01 et seq. According to plaintiffs, further investigation had uncovered evidence concerning the Franklin Shelter’s racial demographics and the widespread presence of
disabilities in the home less community. Based on these fact s, plaintiffs alleged race and disability discrimination under theories of disparate treatment and disparate impact. P laintiffs “move[d] [the Superior Court] to stay proceedings on
defendant’s motion for dismissal or summ ary judgment

. . . pending plaintif fs’ submission of federal [antidiscrimination]
claims” in federal court. The motion included a seventeen

page discussion of the merits of plaintiffs’ antidiscrimination5

claims. Acknowledging that the Superior Court had jurisdiction to hear their fe deral an tidiscrimination claims, plaintiffs nonetheless asserted that “[w]hile the splitting of claims is disfavored, the federal claims raised here are ones of a special nature and are claims of first impression, and
warrant fe deral jurisdiction.” In the alternat ive , plaintiffs
moved to amend their complaint

, attaching a third amended complaint that included the ADA, FHA, an d D.C. Human Rights Act claims. P laintiffs subsequently withdrew that request, reserving the right to re

- fi le an amended complaint.

On May 11, 2009, the Superior Court granted the
District’s motion for summary judgment and denied all other pending motions, including plaintiffs’ motion to stay. A year and a half later, the D.C. Court of Appeals affirmed. See Baltimore v. District of Columbia , 1 0 A.3d 1141 (D.C. 2011). In a footnote, the Court of Appeals held that the Superior Court had not abused its discretion in denying the motion to stay and that the antidiscrimination claims “could have been filed in the instant action and [plaintiffs] offer n o persuasive

re ason why they were not.” Id. at 1156 n.23.

While Sheptock II was pending in the D.C. Su perior
Court

, plaintiffs initiated their third suit

, Sheptock III

, by filing a complaint in the United States District Court alleging
violations of the AD A, FHA, and D.C. Human Rights Act.
The Sheptock III plaintiffs also allege d procedural and substantive due process violations. Unlike in Sheptock II

, plaintiffs brought no claims under the Takings Clause, the Emergency Act , or D.C. tort law . The Sheptock I II plaintiffs
named as defendants then

- Mayor Fenty and three other officials, each in their individual and official capacities

.

In early July 2009

, the district court, responding to a motion to dismiss based on res judicata, stayed Sheptock III6

“pending a decision by the District of Columbia Court of Appeals in a matter arising out of the same event that is the subject of this litigation.” At the same time, t he district court permitted plaintiffs to file a second amended complaint that
added antidiscriminat ion counts challenging the District’s

Perma nent Supportive Housing Program

. As set forth in that complaint, p laintiffs’ claims can be divided into three categories: Counts I through X al lege that the Franklin Shelter closure violated the ADA, FHA, and D.C. Human Rights Act;
Cou nts XI and XII allege that the closure violated plaintiffs’ procedural and substantive due process rights; and Counts XIII through XVIII alle ge that the Permanent Supportive Housing Program violates the ADA, FHA, and D.C. Human Rights Act. After the D.C. Court of Appeals issued its
decision in Sheptock II

, the district court dismissed Sheptock

III on res judicata and collateral estoppel grounds.

T he Sheptock III plaintiffs raise two arguments on appeal

. First, they contend that the mot ion to stay filed in Sheptock II
insulates their claims from res judicata. Second, insisting that
their challenges to the c losure of the Franklin Shelter and to
the District’s Permanent Supportive Housing Program are factually distinct , plaintiffs contend that Counts XIII through

XVIII fall outside Sheptock II ’s preclusive eff ect

. “We review
a dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) de novo .” Atherton v. D.C. Office of the Mayor , 567 F.3d 672, 681 (D.C. Cir. 200 9). Similarly, we review the application of res judicata de novo. See Ibrahim v. District of Columbia

, 463 F.3d 3, 7 (D.C. Cir. 2006).

II.

We begin with familiar principles. “The federal courts have traditionally adhered to the . . . doctrine[] of res judi cata.” Allen v. McCurry , 449 U.S. 90, 94 (1980). Under that doctrine, also known as claim preclusion, “a final7

judgment on the merits . . . precludes relitigation in a subsequent proceeding of all issues arising out of the same
cause of action between the same parties or their privies,
whether or not the issues were raised in the first trial.”
Faulkner v. GEICO , 618 A.2d 181, 183 (D.C. 1992) (emphasis added). For res judicata purposes, a “ ‘cause of action’ is determined by the factual nucleus, not the theo ry on which a plaintiff relies.” Id. (internal quotation marks omitted). “If there is a common nucleus of facts, then the
actions arise out of the same cause of action.” Id. “In determining whether the two actions arise out of the same cause of action, [co urts] consider[] the nature of the two actions and the facts sought to be proved in each one.” Id. (internal quotation marks omitted). Res judicata serve s “the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.” Parklane Hosiery Co. v. Shore , 439 U.S. 322, 326 (1979).

Less familiar in this C ircuit is the related doctrine of
abstention. Cf. John G. Roberts, Jr., What Make s the D.C. Circuit Different? A Historical View , 92 Va. L. Rev. 375,
387

– 88 (2006) (noting the rarity of state law cases in the D.C. Circuit and detailing the creation of the District of Columbia’s local court system in the 1970s)

. Under that doctrine, “ a District Court may decline to exercise or postpone the exercise of its jurisdiction.” Allegheny County v. Frank
Mashuda Co. , 360 U.S. 185, 188 (1959). But a s with many legal concepts, a bstention , as this case well illustrates, “ is not
one doctrine but seve ral.” Adrian Energy Associates v. Michigan Public Service Commission , 481 F.3d 414, 423 ( 6th Cir. 2007).8

Plaintiffs contend that this case is governed by the
abstention principles articulated i n Railroad Commission of
Texas v. Pullman Co. , 312 U.S. 496 (1 941) . There, a group of African American porters and the Pullman railroad company brought a constitutional challenge in federal court against a Texas regulation mandating that Pullman sleeping cars always
have at least one conductor

— which at the time meant a white
conductor . The Supreme Court recognized that this complaint “undoubtedly tendered a substantial constitutional issue. . . . It touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open.” Id. at 498. The Court further explained that it would be unnecessary to reach the constitutional question if the Texas Railroad Commission lacked authority under state law to promulgate the challenged r egulation. Accordingly, t he Cou rt endorsed a “doctrine of abstention” whereby a federal court must withhold ruling on a federal claim so that plaintiffs may obtain a state court ruling on an antecedent state law question. Id. at 501. Given preclusion
doctrine

, Pullman abstention raises the question

— central to the Sheptock III plaintiffs’ argument

— of how parties compelled to litigate their state law claims in state court can prote ct their right to return to federal court.

The Supreme Court answered this question in England v.

Louisiana St ate Board of Medical Examiners , 375 U.S. 411 (1964) , where it fashioned a mechanism

— known as an England reservation

— by which parties forced into state court by federal court abstention can reserve their federal claims and avoid the preclusive effect of a s tate court judgment. T he England plaintiffs wanted to practice in Louisiana without satisfying the educational requirements of the Louisiana
Medical Practice Act. They first brought suit in federal court seeking to have the Act invalidated under the Fourte enth Amendment. Invoking Pullman abstention, the federal court9

entered an order staying proceedings and retaining jurisdiction pending resolution of a state law question in a Louisiana state court. P laintiffs then brought suit in state court
and “did not r estrict those proceedings to the question whether the Medical Practice Act applied to chiropractors. They unreservedly submitted for decision, and briefed and argued, their contention that the Act, if applicable to chiropractors, violated the Fourteenth Am endment.” Id. at 413 (footnote omitted). After losing both claims in the Louisiana

court s , they returned to federal court and the issue of res judicata came to the fore.

In considering this issue, the Supreme Court expressed a “fundamental objection [] to a ny conclusion that a litigant who has properly invoked the jurisdiction of a Federal District
Court to consider federal constitutional claims can be compelled, without his consent and through no fault of his own, to accept instead a state court’s determina tion of those
claims.” Id. at 415 (footnote omitted). The Court also acknowledged that in the “typical” abstention case

— “where the state courts are asked to construe a state statute against the backdrop of a federal constitutional challenge,” id. at 420

— pl aintiffs may feel compelled to alert the state court to the pending federal challenge to fully argue their case. Indeed, in Government and Civic Employees Organizing Committee v.
Windsor , 353 U.S. 364 (1957)

, the Court had required plaintiffs to notify a s tate court about pending claims in
federal court. Thus, to avoid res judicata, the England Court instructed plaintiffs to put

on the state record the reservation to the dispos ition of the entire case by the state courts . . . . That is, [plaintiff] may inf orm the state courts that he is exposing his federal claims there only for the purpose of complying with Windsor , and that he10

intends, should the state courts hold against him on the question of state law, to return to the District Court for disposit ion of his federal contentions.

England

, 375 U.S. at 421 (internal quotation marks omitted). In other words, if a party asks a state court not to adjudicate
its federal claims because it intends to return to federal court,
then it can escape the preclusive effec t of a state court judgment. Convers e ly, “if a party freely and without reservation submits his federal claims for decision by the state courts, litigates them there, and has them decided there, then . . . he has elected to forgo his right to return to th e District
Court.” I d. at 419.

Assuming , as plaintiffs insist, that the district court stayed the case under Pullman , t he parties contest whether a litigant must first file suit in federal court to obtain an England reservation

— a question that has sparked a circuit split

. Compare United Parcel Service v. California Public
Utilities Commission , 77 F.3d 1178, 1185 (9th Cir. 1996) (“[W]e decline to limit England ’s application to cases where the litigant files first in federal court and is remitted to state

cou rt pursuant to Pullman .”), with Fuller Co. v. Ramon I. Gil,

Inc. , 782 F.2d 306, 312 (1st Cir. 1986) (“In order to make an England reservation, a litigant must establish its right to have its federal claims adjudicated in a federal forum by properly
invokin g the jurisdiction of the federal court in the first instance.”). The parties also disagree about whether the Supreme Court’s decision s in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City , 473 U.S. 172 (1985), and San Remo Ho tel v. City and County of

San Francisco , 545 U.S. 323 (2005), required the Sheptock II plaintiffs to liti gate their Takings Clause claim in D.C. Superior Court.11

More fundamentally , the District of Columbia disagrees with plaintiffs’ contention that the dis trict court stayed the

case under Pullman abstention principles

. According to the District, the court stayed the case pursuant to Colorado River
Water Conservation District v. United States , 424 U.S. 800 (1976), which allows a district court to abstain “du e to the presence of a concurrent state proceeding.” Id. at 818.
Premised on “reasons of wise judicial administration,” id.

, Colorado River abstention “does not rest on a mechanical checklist, but on a careful balancing of . . . important factors.”

Moses H . Cone Memorial Hospital v. Mercury Construction Corp. , 460 U.S. 1, 16 (1983). These considerations include which court “first assum[ed] jurisdiction over property” involved in the case; “the inconvenience of the federal forum; the desirability of avoiding piecemeal litigation; and the order in which jurisdiction was obtained by the concurrent forums.”
Colorado River , 424 U.S. at 818 (internal citations omitted).
As the District sees it

, Colorado River governs because Sheptock III was stayed pending the app eal in Sheptock II

. An England reservation , the District further argues, has no place
when a case is stayed pursuant to Colorado River abstention.

Fortunately for us, this is not a federal courts exam

, and

we have no need to pass on all of these arguments

. For e ven assuming that plaintiffs are correct about Pullman

, their motion to stay failed to qualify as an adequate England
reservation. In that motion, p laintiffs asked the Superior C ourt

to “stay proceedings on defendant’s motion for dismissal or

summary judgment . . . pending plaintiffs’ submission of federal [antidiscrimination] claims” in federal court. In plain English, plaintiffs asked the Superior Court to stay all pending claims, both D.C. and federal. This was not an England reservation. Under Eng land

, a party ask s the state
court to resolve a n antecedent state law issue so that it can return to federal court and have its federal claim s heard . Here,12

by cont rast, the Sheptock II plaintiffs asked the Superior C ourt to stay all claims and never signal ed a desire to proceed in
federal court after the Superior Court ruled on any claim

, much less an antecedent question of D.C. law.

Reinforcing our view that plaintiffs’ motion to stay fails to qualify as an England reservation, the parties’ briefs on that
motion repeatedly frame the issue as one of removal. See 28 U.S.C. §§ 1441 & 1446 (removal jurisdiction). In fact

, the
briefs make no reference at all t o England

. In opposing the motion to stay, t he District was uncertain as to what plaintiffs had actually requested of the Superior Court. “It is not clear ,”
the District wondered

, “ whether plaintiffs seek some sort of bifurcation or removal of claims plaintiffs initiated before this
Court.” Indeed, t he Sheptock II p laintiffs took inconsistent
and incoherent positions in their reply brief

. Although they
claimed that they were not seeking removal under 28 U.S.C. § 1441

, they nonetheless framed their request as a “ removal ”
of their antidiscrimination claims

— claims never formally filed in Superior Court. Plainti ffs also disavowed “ removal ”
of “ previously pending claims, ” which included claims under
the Fifth Amendment

. On this point, the Sheptock II plaintiffs
appear to have contradict ed the ir own motion, in which they sought to stay all claims. Given this confus ion, i t is difficult to ascertain what exactly the Sheptock II plaintiffs were seeking in their motion to stay. But what is clear is that plaintiffs
themselves appear not to have believed they were filing an England reservation.

III.

P laintiffs acknowledge that absent a valid England reservation, Counts I through X I I are precluded. See Oral Arg.
Rec. 6:55

– 7:40

, 16:49

– 17:05. These counts include the ADA, FHA, D.C. Human Rights Act, and due process claims tied
di rectly to the Franklin Shelter closure.13

Plainti ffs insist that Counts XI I I through XVIII are not barred by res judicata because they stem from a nucleus of
facts distinct from Sheptock II

. These counts raise race and disability discrimination c laims under the ADA and FHA. Although it is not entirely cl ear from the ir second amended
federal complaint, plaintiffs contend that these counts challenge the District of Columbia ’s continuing failure to provide housing for the homeless in th e wake of the Franklin
Shelter closure. Specifically, they point to the D istrict’s failure to adequately implement its Perma nent Supportive Housing Program

. T o the extent this program has been implemented, plaintiffs contend that the District has done so in a discriminatory fashion and with the goal of moving the
homeless popul ation to the “poorest and most violent parts of

town

. ” Second Am. Fed. Compl. ¶ 39. According to plaintiffs, these “post

- judgment events give rise to new claims, so that claim preclusion is no bar.” Stanton v. District of Columbia Court of Appeals , 1 27 F.3 d 72, 78 (D.C. Cir. 1997); s ee also
Drake v. FAA , 291 F.3d 59, 67 (D.C. Cir. 2002) (“The [res judicata] doctrine does not bar a litigant from doing in the present what he had no opportunity to do in the past.”).

To recap, res judicata bars a subsequent sui t “involving the same parties or their privies based on the same cause of
action.” Parklane Hosiery Co. , 439 U.S. at 326 n.5. To
ascertain if “two cases implicate the same cause of action” we look to whether “they share the same ‘nucleus of facts.’ ”
Drake , 291 F.3 d at 66 (quoting Page v. United States , 729 F.2d 818, 820 (D.C. Cir. 1984)).

Contrary to plaintiffs’ argument

, Counts XIII through

XVIII flow directly from the closure of the Franklin Shelter

, the same event that formed the basis of Sheptock II . T he second amended federal complaint ’s factual allegations repeatedly link the Permanent Supportive Housing Program14

and the closure of the Franklin Shelter. For example, the complaint alleges that the harms associat ed with the Permanent Supportive Housing P rogram impact “[m]any
former residents of Frank lin Shelter.” Second Am. Fed. Compl. ¶ 42 ; s ee also id. ¶ 38 (“The Permanent Supportive Housing Program , previously identified by the District as the means to mitigate any loss of shelter space because for [si c] the closing of Franklin Shelter, fails to keep pace with the demand.”)

. The complaint further assert s that the discriminatory provision of services continues because the
Franklin Shelter remains closed. “Since the closing of Franklin Shelter, ” the compl aint alleges, “ defendants’ repeated failures directly and proximately denied plaintiffs
needed services .” I d. ¶ 148 ; s ee also id. ¶ 117 (“Defendants intentionally denied plaintiffs housing, continued failures [sic] to provide adequate shelter space and pla cement in permanent supportive housing, because of plaintiffs’ race.”)

. Indeed, the requested relief

— the reopening of the Franklin Shelter

— demonstrates that the allegedly discriminatory provision of services is inextricably tied to the Franklin Shelter clo sure. See id. ¶ 40 (“Plaintiffs seek temporary and permanent injunctive relief compelling the District Government to re

open Franklin Shelter and return the status quo . . . .”).

To be sure, the events alleged in Counts XIII through
XVIII occurred after th e Franklin Shelter was closed . But a quick glance at the Sheptock II complaint c onfirms that the events now alleged in Sheptock III were known to pl aintiffs during the Sheptock II litigation

. For one thing

, t h e second
amended complaint refers to the Perman ent Supportive Housing Program ’s inability to keep up with demand. See

, e.g. , Second Am. D.C. Compl. ¶ 86 (“It is also unclear what priorities were used to determine placement in the Permanent Supportive Housing Initiative, since the most vulnerable of
the Franklin Shelter inhabitants are not currently part of the15

program, but are now sleeping in the parks and streets near Franklin Shelter.”). Th e complaint also alludes to the
District’s alleged policy of moving the homeless population
out of the downtown c ommercial area

. See, e.g.

, id. ¶ 80 (“ Currently designated warming centers are as many as five miles away from the downtown area . . . .” ) ; id. ¶ 84 (“Most placements are occurring in the poorest and most violent parts of town, and with the least services available for the vulnerable and the homeless.”). And most significantly

, th e complaint acknowledges the disproportionate rates of
substance abuse and mental illness amongst the city ’s homeless po pulation

— a key premise of the Sheptock III plaintiffs’ disab ility discrimination claims. See id. ¶ 94 (“ In DC, an estimated 71% of the homeless individuals suffer from
either substance abuse or mental illness es .”)

.

Counts XIII through XVIII thus share the same nucleus
of facts as Sheptock II

. True , t he Sheptock II plaintiffs

m arsha led these facts in support of constitutional and D.C. law claims, rather than antidiscrimination claims

. But r es judicata turns on a suit’s factual context, “not the theory on which a plaintiff relies.” Faulkner , 618 A.2d at 183 (internal quotation marks omitted). B ecause the se claims “could have
been raised” in Sheptock II

, they are precluded

. Allen , 449
U.S. at 94.

IV.

For the foregoing reasons, we affirm.

So ordered.