* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 31 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

DAVE WOODARD,

Plaintiff-Appellant,

v. JEFFERSON COUNTY, County Clerk, County Treasurer or any one of the County Commissioners of Jefferson County, Oskaloosa, KS,

Defendants-Appellees. No. 00-3254 (D.C. No. 96-CV-4224-SAC)

(D. Kan.)

ORDER AND JUDGMENT *

Before EBEL , ANDERSON , and KELLY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Dave Woodard, a Florida citizen, appeals from summary judgment granted in favor of the Jefferson County Board of County Co mmissioners (Board) on his Kansas state-law tort claim of retaliatory discharg e. Jurisdiction in federal court is based on diversity of the parties. See 28 U.S.C. § 1332. The district court concluded that an internal grievance committee’s “f inding” that Mr. Woodard had not been wrongfully terminated by the county Em ergency Medical Services Department (EMS) in retaliation for whistle-blowing should be given collateral estoppel effect in his civil action. The court als o held that the Board’s decision to uphold Mr. Woodard’s termination “constitutes a jud gment on the merits” entitled to application of the doctrine of res judicata. Woodard v. Bd. of County Comm’rs , 108 F. Supp. 2d 1184, 1192 (D. Kan. 2000). Our jur isdiction arises under 28 U.S.C. § 1291, and we reverse and remand.

I. Relevant facts and proceedings The following facts are undisputed or viewed in a l ight most favorable to Mr. Woodard as the party opposing summary judgment. See Frandsen v. Westinghouse Corp. , 46 F.3d 975, 977 (10th Cir. 1995). Mr. Woodard w orked full-time as an emergency medical technician-interm ediate (EMTI) for the Jefferson County EMS from 1990 until 1995, when he was terminated. Dan Dailey was the director of the EMS, and Kevin K lenklen was the assistant director and the EMS’s only paramedic on staff. In1995, Mr. Woodard-3-

became concerned that asbestos in the building usedfor 911 services was being improperly removed and disposed of under Mr. Klenklen’s direction. Mr. Woodard and two other EMS employees, including Mike Tyler, took samples of the material and delivered them to the Kansas De partment of Health and Environment on April 6, 1995. The next day, Mr. Wo odard and other EMS employees attended a Board meeting to complain bothabout the asbestos and about the conduct of Mr. Klenklen. Mr. Dailey also attended the Board meeting. Mr. Woodard did most of the talking at the Board me eting. Besides discussing the asbestos problem, he alleged, inter alia, that Mr. Klenklen endangered the lives of patients he treated as a pa ramedic, falsified recertification records and state reports, and did private work on county time. See Appellee’s App. at 81, 85-89, 122. On April 10 the Board met again with the group, with Mr. Woodard and Mr. Tyler speaking on behalf of the group. Mr. Woodard gave the Board a written grievance. The Board “scolded” the employees for going over Mr. Dailey’s head and went into executive session, instructing the employees to talk with the county attorney. Id. at 124. The attorney told the employees that the county would face liability issues if the grievance was made public. Id. Later that day, Mr. Rhodes, one of the Board member s, attended an EMS training meeting and told the employees that anonymous faxes regarding the grievance had been sent to the local press. He admitted that he was upset about the faxes.1 Although Mr. Dailey also terminated Loren Hubbard a s a full-time EMT, he

retained him as a part-time EMT, rehiring him in a full-time capacity in 1996. Appellee’s App. at 79. -4- Id. at 103. Mr. Rhodes was quoted in the local newsp aper as calling the written grievance “malarkey.” Id. at 109-110. On April 11, Mr. Klenklen resigned as the assistant director and paramedic on call, sayin g that he did not “want to work with those guys anymore,” but he maintained part-ti me employment with the EMS in “technical assistance,” reporting directly to the Board. Id. at 103, 83. He later recommended hiring full-time paramedics instead of EMTs. Id. at 107. On June 26, the Board voted to restructure the EMS so that paramedics would replace several EMT/EMTI positions. Mr. Tyle r testified that, because Mr. Dailey said he was going to fire three or four EMTs and keep those who had not caused trouble, he requested and received a tra nsfer to the sheriff’s department. Mr. Dailey selected two EMTs/EMTIs fortermination effective December 31, 1995, one of whom was Mr. Woodard. 1 Russell Dunn, a retained EMTI, testified that Mr. Dailey said, “now that the troublemakers [are] gone, maybe we [can] get something accomplished.” Id. at 174. Mr. Woodard challenged his termination, requesting review by the county grievance committee as provided in the county perso nnel manual. He asked the grievance committee to recommend his reinstatement and “payment of damages.” Id. at 139. The grievance committee was created by th e Board as part of an-5-

“internal grievance procedure,” and is made up of o ther county employees appointed by the Board. Id. at 115, 116, 139. The county clerk, who acts as t he secretary for Board meetings and who had attended the meetings during which Mr. Woodard presented his complaints about asbestos and Mr. Klenklen, was one of the three county employees serving on Mr. Woodar d’s grievance committee. Id. at 127-28, 139. At the hearing Mr. Woodard was represented by couns el and had an opportunity to present evidence and cross-examine the county’s witnesses. The grievance committee sent a letter to the Board on F ebruary 2, 1996, stating its “belief that Mr. Woodard was not wrongfully terminated and should not be reinstated or paid damages.” Id. at 140. The Board upheld Mr. Woodard’s termination. Mr. Woodard then filed suit for wrongful terminatio n in federal district court based on diversity jurisdiction. The distric t court granted summary judgment in favor of the Board. The court found th at the grievance committee had “actually determined” the issue of whether Mr. Woodard had been terminated in retaliation for whistle-blowing and concluded th at “the Board’s decision, although unappealed, constitutes a judgment on the merits.” Woodard , 108 F. Supp. 2d at 1192-93. The court held that th e county was entitled to summary judgment because Mr. Woodard’s claim was “s ubject to the ‘long-6-

favored application of the common-law doctrines of collateral estoppel (as to issues) and res judicata (as to claims) to those de terminations of administrative bodies that have attained finality.’” Id. at 1193 (quoting Astoria Fed. Sav. & Loan Ass’n v. Solimino , 501 U.S. 104, 107 (1991)).

II. Standard of review We review the district court’s grant of summary jud gment de novo, applying the same legal standard used by the distri ct court. Under Fed. R. Civ. P. 56(c), summary judgment is proper o nly if the evidence, reviewed in the light most favorable to t he . . . party opposing the motion, demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Frandsen , 46 F.3d at 977. Because we sit in diversity, we apply Kansas substantive law, reviewing de novo the district cou rt’s conclusions of law that collateral estoppel and res judicata bar Mr. Woodar d’s claim as well as the threshold issue of jurisdiction. See Barrett v. Tallon , 30 F.3d 1296, 1300 (10th Cir. 1994)

.

III. Jurisdiction We must preliminarily address an argument the Boardraised as an alternative basis for disposition, as it relates to the subject-matter jurisdiction of the federal courts to review this case. See Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 577 (1999) (stating that “jurisdictio n generally must precede merits2 Although acknowledging that, under Kansas law, fail ure to comply with an

exclusive remedy jurisdictionally bars collateral attack of a board’s decision by the filing of an independent action, the district c ourt concluded that to do so “would, in essence, be applying the Rooker-Feldman doctrine to an administrative decision,” which the court rejected as inappropriate. Woodard , 108 F. Supp. 2d at 1189-91. We believe the court confused the two legal concepts and we do not rely on its analysis in arriving at the same result

. -7- in dispositional order”). The Board argues that Mr . Woodard’s suit should be dismissed because his exclusive remedy was to appea l the Board’s decision to uphold his termination to the state district court under Kan. Stat. Ann. § 19-223 (providing for appeal to the state district court o f “any decision” of a county board). If Mr. Woodard’s exclusive remedy was in f act to appeal the decision to state court under section 19-223, the federal di strict court should have dismissed the suit for retaliatory discharge for la ck of subject matter jurisdiction. See Larson v. Ruskowitz , 850 P.2d 253, 255 (Kan. 1993). 2 Before the turn of the last century, the Kansas Sup reme Court reviewed the predecessor to section 19-223 and noted that countyboards made legislative, political, administrative, ministerial, and quasi-judicial decisions. Fulkerson v.
Stevens , 1 P. 261, 262 (Kan. 1883). The court determined that “the legislature never intended that an appeal should lie from everydecision made by the board of county commissioners.” Id. The court held that appeals to a district court u nder the predecessor to section 19-223 “must be limited to such cases as require the exercise of purely judicial power.” Id. In order to determine whether a particular-8-

board’s specific decision was an exercise of judici al power and therefore appealable under the statute, the court in Fulkerson examined the enabling act to determine whether that board had specifically been given judicial powers in regard to its authority to grant petitions to organ ize new townships. Finding none, it held that the board’s decision to grant ordeny a petition to organize was not quasi-judicial and therefore not appealable. See id. at 262-63. Since Fulkerson was decided, Kansas courts have consistently held that the phrase “any decision” in section 19-223 means only “a judicial or quasi-judicial decision” (unless appeal is expressly provided for under this section by statute), and that section 19-223 provides the exclusive meth od to appeal from a judicial or quasi-judicial decision of a county board. See Dutoit v. Bd. of County Comm’rs , 667 P.2d 879, 884 (Kan. 1983). Thus, under Fulkerson and its progeny, “quasi-judicial” presupposes the power to adjudicate. See also Thompson v. Amis, 493 P.2d 1259, 1263 (Kan. 1972) (“quasi-judicial is a term applied to a dministrative boards or officers empowered to investigate facts, weigh evidence, draw conclusions as a basis for official actions, and exercise discretion of a judi cial nature”). We find the jurisdictional issue in this case to be controlled by Fulkerson and Larson, supra. In Larson , the Wyandotte Board of County Commissioners upheld the terminations of two county employees aft er the employees filed-9-

grievances protesting their layoffs. Larson , 850 P.2d at 255. The former employees then filed suit in state court for wrongf ul termination, alleging that they had been laid off in retaliation for exercisin g their First Amendment rights. They were awarded damages, and on appeal the Board contended for the first time that the state court had no jurisdiction over the s uit because “the proper procedure was for the plaintiffs to have appealed the decisio n of the Board affirming the layoffs to the district court under K.S.A. 19-223.” Id. Noting that, under Fulkerson , section 19-223 is applicable only to a board’s quasi-judicial decisions, the Kansas Supreme Court held that the board’s decision to approve a reorganization plan eliminating the pl aintiffs’ jobs, thereby upholding the employees’ terminations, was made whi le the board was acting in an administrative capacity and was therefore not su bject to section 19-223 review. Id. at 256. The Larson court concluded that it was “an appropriate proced ure” for a terminated county employee who had filed a gr ievance and whose termination had been upheld by the county board to subsequently file a tort suit for retaliatory discharge in state court. Id. The district court distinguished Larson because the case did “not reflect that any evidentiary hearing was held, any witnesse s were called, any counsel represented the plaintiffs, or that the grievance h ad any of the attributes of a quasi-judicial proceeding.” Woodard , 108 F. Supp. 2d at 1190. Insofar as-10-

Larson demonstrates that a board’s decision to uphold cou nty employee terminations is not a quasi-judicial decision but r ather an administrative one, however, this distinction is not relevant. “[N]ot all proceedings involving elements of [adjudicatory] procedure constitute adjudication.” R ESTATEMENT (S ECOND ) J UDGMENTS § 83 cmt. b. In further attempting to distinguish Larson , the district court also stated that Mr. Woodard’s challenge to the specific decisi on to terminate him was to one “not made by the Board” and thus Larson’s holding did not apply. See Woodard , 108 F. Supp. 2d at 1190. This statement is erroneo us not only because the Board in fact terminated Woodard through Mr. Dailey, its agent and head of the county EMS department, but also because the Board had the exclusive authority to uphold that termination. It is also internally inc onsistent with the district court’s later statement that the Board’s unappealed-from de cision to uphold the termination decision “constitutes a judgment on the merits.” Id. at 1192. The Board argues that Larson is distinguishable because the board in that case “was being asked to make, alter, or repeal a l aw or rule for the future.” Appellees’ Br. at 14. We disagree. The board in Larson ultimately was asked to do exactly what the Board in this case was asked to do: reinstate the employment of the terminated employees. The fact that the board in Larson also declined to modify an aspect of its legislative decision did no t make its administrative-11-

decision to uphold the terminations a quasi-judicial one. See Ditch v. Bd. of County Comm’rs , 650 F. Supp. 1245, 1250 (D. Kan. 1986) (stating that “most courts hold that a decision to hire or fire a speci fic individual for a specific position is administrative or managerial” and collecting cases), order amended on other grounds by 669 F. Supp. 1553 (D. Kan. 1987). Although the rationale upon which the Larson court rejected the argument that section 19-223 provides the exclusive judicial procedure in which a terminated county employee may challenge his term ination is not crystal clear, it relied upon the requirement of a quasi-judicial decision and cited Fulkerson , which predicates a quasi-judicial decision on statutory authority to adjudicate. In our discussion in part IV.B. below, we address i n more detail why neither the Board nor its grievance committee have power to adj udicate termination disputes between the county and Mr. Woodard. We need not fu rther discuss this principle here, however, because Larson , which factually is on all fours with the case before us, at the very least holds that terminated county employees who have challenged their terminations through a grievance p rocedure to a county board may bring independent tort actions for retaliatory termination. Thus, under
Larson , the federal district court had jurisdiction to he ar and decide Mr. Woodard’s retaliatory discharge claim.

IV. Discussion-12-

On the merits, we must determine whether, in a stat e-law tort action for retaliatory discharge, Kansas courts (1) would give collateral estoppel effect to “findings” of a county board’s internal grievance c ommittee regarding the employee’s request for reinstatement and (2) would apply res judicata to a county board’s final determination to uphold its employee’s termination. See Amoco Prod. Co. v. Heimann , 904 F.2d 1405, 1415 n.10 (10th Cir. 1990). There appear to be no Kansas cases directly on point, thus we attempt to predict how Kansas’s highest court would rule, considering relevant deci sions of Kansas courts, other state and federal courts, and the general weight and trend of authority. See FDIC v. Schuchmann , 235 F.3d 1217, 1225 (10th Cir. 2000). We particu larly note that, in deciding preclusion issues of first impression, because “Kansas law does not appear to differ significantly from the federal law regarding preclusion doctrines,” Kansas courts specifically look to Supr eme Court and circuit law to decide application of the doctrines. Grimmett v. S&W Auto Sales Co. , 988 P.2d 755, 759-60 (Kan. Ct. App. 1999). We also note that, in determining whether res judicata should apply to administrative proceed ings, Kansas follows the principles expressed in the R ESTATEMENT ( SECOND ) OF J UDGMENTS § 83 (1980).
See Neunzig v. Seaman Unified Sch. Dist. No. 345 , 722 P.2d 569, 574 (Kan. 1986); Parker v. Kan. Neurological Inst. , 778 P.2d 390, 392 (Kan. Ct. App. 1989).-13-

A review of case law indicates that Kansas courts g enerally apply preclusion principles only to findings and final de cisions of (1) administrative agencies with adjudicative powers (2) to decide the particular issue (3) when the decision is actually a judicial, and not an adminis trative or managerial, decision; (4) in a proceeding providing due process protectio ns; if (5) the issue has been fully litigated. See Murphy v. Silver Creek Oil & Gas, Inc. , 837 P.2d 1319, 1321 (Kan. Ct. App. 1992). In determining these matters , Kansas courts look to the state statutes creating the agency--the enabling ac t--and the specific administrative procedures the agency follows. See Neunzig , 722 P.2d at 572. This is because “[a]dministrative agencies are creatures of statute and their power is dependent upon authorizing statutes, therefore any exercise of authority claimed by the agency must come from within the statutes. There is no general or common law power that can be exercised by an adm inistrative agency.” Legislative Coordinating Council v. Stanley , 957 P.2d 379, 392 (Kan. 1998) (quotation omitted). We therefore must initially establish that the enti ty has in fact been created by statute as an administrative tribunal of the state (or by a political subdivision with statutory power to create the tribunal). We m ust next determine what specific adjudicative powers the legislature has authorized. Cf. Hartman v. State Corp. Comm’n , 529 P.2d 134, 141 (Kan. 1974) (stating that “an a dministrative-14-

regulation which goes beyond or conflicts with legi slative authorization is void”). “The jurisdiction of administrative agencies is usu ally defined in terms of specified substantive legal provisions. . . . Thes e limitations on authority of the tribunal should carry corresponding limitations on the scope of ‘claim’ for purposes of the rule of claim preclusion.” Parker , 778 P.2d at 392 (quoting
RESTATEMENT (S ECOND ) OF J UDGMENTS § 83 cmt. g) (alteration in original). Thus, in this case we decide whether either the gri evance committee or the Board has been given statutory authority to decide the pr ivate rights of the parties in a tort action, keeping in mind that claims implicat ing private legal rights like those involved in this tort action should not readi ly be assumed to fall within the province of administrative agencies. See generally Commodity Futures Trading Comm’n v. Schor , 478 U.S. 833, 853 (1986) (“private, common law ri ghts were historically the types of matters subject to resolution by Article III courts”). Further, we must consider whether the particular de cision is a quasi-judicial decision. See Hartman , 529 P.2d at 141 (stating that “[a]dministrative a ction other than adjudication cannot be res judicata”) (quotation omitted); Leavenworth County Comm’rs v. Brewer , 9 Kan. 307, 1872 WL 629, at *8 (Kan. 1872) (discussing difference between quasi-judicial and m anagerial decisions). If the agency meets all these requirements, we mustthen examine whether there are statutory procedural protections in place that satisfy due process,-15-

including adjudication by an impartial and disinter ested decision maker. See Murphy , 837 P.2d at 1321 (noting that application of prec lusion doctrines requires “sufficient due process protections”). Itis with these principles in mind that we conduct our analysis. A. Collateral estoppel. Except in cases brought pursuant to federal anti-di scrimination laws, federal courts generally must give a state agency’s fact finding “the same preclusive effect to which it would be entitled in the State’s courts” when the “state agency acting in a judicial capacity . . . r esolves disputed issues of fact properly before it which the parties have had an ad equate opportunity to litigate.” Univ. of Tenn. v. Elliott , 478 U.S. 788, 796, 799 (1986) (quotation omitted, alteration in original). Mr. Woodard argues that the grievance committee’s “belief” that he had not been terminated in retaliation for whistle-blowing (which the district court characterized as a “finding”) ca nnot be given collateral estoppel effect in his suit for retaliation because the grie vance committee was not acting in a judicial capacity and the grievance process did n ot afford procedural protections similar to court proceedings. We agree. 1. The grievance committee is an advisory, and not an adjudicative,
committee. The power to issue a legally-binding finding of f act implicates the power to adjudicate. See id. at 799. The Board cited no statute, either in its-16-

summary judgment pleadings or on appeal to this cou rt, to indicate that Kansas has created state administrative agencies charged w ith hearing grievances for county employees or administrative tribunals to dec ide state-law retaliatory discharge claims, or that the state has given the B oard authority to do so. Cf. Thompson , 493 P.2d at 1263 (noting that state Civil Service Board is empowered by statute to hear appeals of dismissed s tate employees and determine the reasonableness of the dismissal). The Board si mply stated that “[u]nder its broad ‘home rule’ powers, [it] had authority to est ablish and utilize grievance procedures to hear its employees’ complaints regard ing employment-related decisions.” Appellee’s App. at 28 (citing Kan. Stat . Ann. §§ 19-101 through 19-103). The district court did not discuss where, if its findings were supposed to have independent legal significance in Kansas co urts, the grievance committee or the Board obtained state authority to act in a q uasi-judicial capacity in regard to county employee terminations. See generally Thompson, 493 P.2d at 1263 (indicating that for act to be “quasi-judicial,” bo ard must be statutorily empowered to act in a judicial manner). As mentioned above, the grievance committee was cre ated by the Board as part of an “internal grievance procedure,” see Appellee’s App. at 115 (county grievance policy), not by the state as a quasi-judi cial administrative agency or tribunal. In fact, its findings are merely advisory. See id. at 116 (“No-17-

disciplinary action shall take effect until the Com mittee reports its findings to the Commission, [i.e. the Board] and the Commission has adopted the findings of the Committee.”). While it is certainly true that, under its home-rul e authority to perform powers of local administration, see Kan. Stat. Ann. § 19-101a, the Board could appoint an advisory committee to assist it in decid ing whether to support one of its department’s termination or disciplinary decisi ons, the statutes setting forth the powers of county boards do not include authority to create sub-agencies or tribunals to adjudicate state-law causes of action against the county. See Kan. Stat. Ann. § 19-101 (listing specific powers o f county, including to sue and be sued, to purchase, hold, and sell property for c ounty use and make orders respecting the use of that property, to make contra cts in relation to county property and concerns, to exercise powers of home rule to determine their local affairs, and to exercise “such other and further po wers as may be especially conferred by law”); Kan. Stat. Ann.§ 19-212 (descri bing powers of board of county commissioners); Kan. Stat. Ann. § 19-101a(a) (3) (providing that boards “may not affect the courts located therein”). Unde r Kansas law outlined earlier, only the state may create administrative tribunals that conclusively resolve issues of state law, and Kansas has not created one for th is purpose. The grievance committee’s “findings” (which in fact were no more than informal statements of-18-

belief) were not made with adjudicatory authority a nd therefore are not entitled to collateral estoppel effect. 2. There was no independent decision maker. There is also another reason why the committee’s “findings” are not entit led to preclusive effect.

[D]ue process requires a neutral and detached judge in the first instance, and the command is no differentwhen a legislature delegates adjudicative functions to aprivate party. That officers acting in a judicial or quasi -judicial capacity are disqualified by their interest in the controversy to be decided is, of course, the general rule. Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust , 508 U.S. 602, 617 (1993) (quotations and citations omitted). The internal grievance committee is nothing more than an agent of the Boar d. Although the district court noted that “members of the grievance committee were not from the same department as Woodard,” and stated that the committ ee “arrived at an independent judgment as to Woodard’s termination,” Woodard , 108 F. Supp. 2d at 1190, 1192, the members still were all Board-appointed county e mployees ultimately dependent upon the Board and the county for their e mployment. The county employees/agents were not neutral and de tached “judges” because their employer was a party to the proceeding. The “findings” therefore may not be given collateral estoppel effect.
B. Res Judicata.-19-

The district court also applied the doctrine of res judicata to bar Mr. Woodard’s tort claim, holding that the Board’s decision to uphold the termination constituted a “judgment on the merits.” Woodard , 108 F. Supp. 2d at 1192. The Kansas Supreme Court has held that re s judicata is “intrinsically a judicial doctrine not to be applied unwittingly t o legislative or executive activities which administrative bodies are sometime s empowered to exercise in addition to the judicial one.” Neunzig , 722 P.2d at 573. Further, Kansas applies the doctrine only when the administrative proceedin gs provide procedural protections similar to court proceedings. Id. at 574. “‘The starting point in drawing the line is the observation that res judicata applies when what the agency does resembles what a trial court does.’” Id. (quoting 4 Davis, Administrative Law Treatise § 21:3 (2d ed. 1983)); see generally RESTATEMENT (S ECOND ) OF J UDGMENTS § 83 cmt. b (“In the performance of adjudicative f unctions, . . . administrative agencies are generally required by l aw to employ procedures substantially similar to those used in courts.”). For the same reasons that county board decisions to uphold terminations are not quasi-judicial for jurisdictional purposes, the y are not quasi-judicial for the purpose of applying res judicata: they do not repr esent decisions arising from the proper exercise of adjudicatory authority. Examination of the applicable Kansas3 In contrast, Kansas has created independent and imp artial state

administrative tribunals to adjudicate employment c ontroversies between state employees and the state, and tenured public school teachers and the city or counties that employ them. See Kan. Stat. Ann. § 75-2925 (creating the Kansas Civil Service Board (CSB) under the Kansas Civil Se rvice Act to administratively review terminations or discipline of state public e mployees at the employees’ request); section 75-2929d(a) (giving CSB authorityto hear appeals from terminations of state public employment); section 7 5-2949 (setting procedures for termination, right to appeal termination decision to CSB); cf. also Kan. Stat. Ann. § 72-5438 (providing for due process hearing before independent hearing officer after termination or disciplinary decisions involvi ng public school teachers). -20- statutes, case law, and the procedures followed by the Board corroborate that conclusion. The power to render a judgment also presupposes the power to adjudicate. See Thompson , 493 P.2d at 1253. As discussed above, the Board has not supplied any statutory support for its assertion that it is authorized to adjudicate termination disputes between the county and its employees. 3 The Board is simply an agent of the county. Kansas courts have long held that when a board of c ounty commissioners denies a county employee’s claim against the county , the act of denying the claim is not a quasi-judicial act. [W]hen they allow or disallow a claim against theircounty--against their principal--they do not act in a judicial capa city. They are not then a court, acting impartially between two conten ding parties, but they are simply the agents of one of the parties, a nd acting for such party.-21-

Brewer , 9 Kan. 307, 1872 WL 629, at *8. Similarly, Kansa s courts have held that a county board of education’s final decision to bre ach an employment contract with a non-tenured teacher was an executive, not a quasi-judicial, decision. Speece v. Unified Sch. Dist. No. 420 , 626 P.2d 1202, 1205 (Kan. Ct. App. 1981) (holding that employee could bring independent acti on for breach of employment contract despite adverse decision by board). “Cityand county governing bodies disallow both tort and contract claims at almost ev ery meeting. . . . Thus, a governing body’s action may set the stage for pot ential lawsuits, but it has never been thought that a disappointed claimant cou ld only appeal from the adverse decision.” Id. That is not to say that the Board has not been give n any quasi-judicial functions by the Kansas legislature. There are ins tances in which, in the process of carrying out its statutory responsibilities, Kan sas county boards must make quasi-judicial decisions. One example of a quasi-j udicial county board decision is the one made after the board holds statutorily mand ated hearings to determine whether annexation of county land by a city will hi nder or prevent proper growth and development of an area. See Kan. Stat. Ann. §§ 12-520c, 12-521; City of Topeka v. Shawnee County Bd. of County Comm’rs , 845 P.2d 663, 669-70 (Kan. 1993). Another example is when, after statut ory proceedings brought by third parties, a county board determines as “fence viewers” whether a partition-22-

fence should be repaired or rebuilt. See Kan. Stat. Ann. §§ 29-201, 29-302, 29-304, 29-403; Kaplan , 3 P.3d at 1273 (noting that county board’s decisi on after sitting as “fence viewers” was quasi-judicial). The Board was not acting in a quasi-judicial capaci ty when it upheld Mr. Woodard’s termination. See Concannon v. Bd. of County Comm’rs , 626 P.2d 798, 799-800 (Kan. Ct. App. 1981) (holding that board’s rejection of employee’s claim for compensation was not quasi-judicial decis ion because board was simply authorized agent of county acting on the county’s b ehalf). Because the Board’s decision did not constitute an adjudication, and “[ a]dministrative action other than adjudication cannot be res judicata,” Hartman , 529 P.2d at 141 (quotation omitted), the district court improperly applied res judicata to foreclose Mr. Woodard’s suit. C. Kansas case law does not support applying precl usion doctrines in
this case. No cases cited by the district court or by the appe llee support a contrary view. See Parker , 778 P.2d at 391-92 (holding that res judicata didnot bar litigation of state-law discrimination claims afterboth Kansas CSB and Kansas Commission on Civil Rights had ruled adversely to p laintiff on issue of discrimination); Gutierrez v. Bd. of County Comm’rs , 791 F. Supp. 1529, 1533 (D. Kan. 1992) (holding, in case alleging discrimin ation and retaliation that-23-

Kansas courts probably would not apply res judicataprinciples to findings made by state unemployment compensation referee and affi rmed on appeal by the Kansas Employment Security Board of Review). The cases cited by appellee that do apply preclusio n principles to administrative agency decisions bear the hallmarks discussed above: a final, quasi-judicial decision rendered by a state-createdadministrative tribunal that is not a party to the dispute and that has statutory a uthority to decide the particular issue in a proceeding with due process protections. See Neunzig , 722 P.2d at 571-74 (applying res judicata to final decision of independent hearing committee created by state statute as tribunal to hear issues involving teacher termination; decision was subject to review by court); Murphy , 837 P.2d at 1321-22 (applying collateral estoppel to finding of state worker’s co mpensation judge statutorily authorized to determine whether plaintiff was an employee of defendant). Internal personnel grievance proceedings are intend ed only to give the county an opportunity to take a hard look at its ag ent’s actions and to get a preview of the aggrieved employee’s evidence so that it may discover and correct erroneous decisions before having to litigate a state-law breach of contract or tort suit in court before an independent decisio n maker. The principles of res judicata and collateral estoppel do not apply i n this case and the district court’s decision must be reversed.-24-

D. Alternative arguments for dismissal or affirman ce. The Board raises two additional alternative arguments in support of dismissing the case or affirming the district court ’s grant of summary judgment. We address each argument in turn.
1. Rooker-Feldman doctrine is inapplicable. First, the Board argues that Mr. Woodard’s claims s hould be dismissed pursuant to an extension of the Rooker-Feldman doctrine, which precludes federal review of state-court judgments. This argument was rejected by the district court,

see Woodard , 108 F. Supp. 2d at 1187-1189, and the Board did n ot cross-appeal from the court’s adverse ruling. See Hutchinson v. Pfeil , 208 F.3d 1180, 1186 (10th Cir. 2000) (“A party may not circumvent the o bligation to cross-appeal an adverse decision simply by rearguing the matter in connection with another, favorable ruling.”); Trigalet v. Young , 54 F.3d 645, 647 n.3 (10th Cir. 1995). Even if the ruling had been properly appealed from, however, we would find the Board’s argument to be without merit. First, the Board’s request that we extend Rooker-Feldman to bar federal jurisdiction over Mr. Woodard’s retaliation claim f ails for lack of a “judgment” rendered by a statutorily authorized administrative tribunal. There is simply no “judgment” here. Further, as the district courtcorrectly noted, the-25-

Rooker-Feldman doctrine applies only to judicial proceedings. See D.C. Court of Appeals v. Feldman , 460 U.S. 462, 476 (1983). 2. Genuine issues of material fact preclude summar y judgment. Next, the Board asserts that summary judgment shoul d be upheld because there is an absence of evidence from which a reason able jury could find that the Board terminated Mr. Woodard’s employment in retali ation for whistle-blowing activities. This issue was raised before, but not ruled on, by the district court. Generally we do not consider issues on appeal that have not been decided in the district court. See R. Eric Peterson Constr. Co. v. Quintek, Inc. ( In re R. Eric Peterson Constr. Co.) , 951 F.2d 1175, 1182 (10th Cir. 1991). However, because our review is de novo and the stipulated fa cts and record summarized in part I of our order and judgment provide ample e vidence establishing that a genuine issue of material fact exists as to why t he Board decided to terminate Mr. Woodard, we conclude that summary judgment is n ot appropriate. We deny the Board’s request to affirm the district court onalternative grounds.-26-

The judgment of the United States District Court fo r the District of Kansas is REVERSED and REMANDED to the district court for further proceedings consistent with this order and judgment.

Entered for the Court

David M. Ebel Circuit Judge