                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 31 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    DAVE WOODARD,

                Plaintiff-Appellant,

    v.                                                  No. 00-3254
                                                 (D.C. No. 96-CV-4224-SAC)
    JEFFERSON COUNTY, County Clerk,                       (D. Kan.)
    County Treasurer or any one of the
    County Commissioners of Jefferson
    County, Oskaloosa, KS,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , ANDERSON , and KELLY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Dave Woodard, a Florida citizen, appeals from summary judgment granted

in favor of the Jefferson County Board of County Commissioners (Board) on his

Kansas state-law tort claim of retaliatory discharge. 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 “finding” that Mr. Woodard

had not been wrongfully terminated by the county Emergency Medical Services

Department (EMS) in retaliation for whistle-blowing should be given collateral

estoppel effect in his civil action. The court also held that the Board’s decision to

uphold Mr. Woodard’s termination “constitutes a judgment 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 jurisdiction 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 light 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 worked

full-time as an emergency medical technician-intermediate (EMTI) for the

Jefferson County EMS from 1990 until 1995, when he was terminated.

Dan Dailey was the director of the EMS, and Kevin Klenklen was the assistant

director and the EMS’s only paramedic on staff. In 1995, Mr. Woodard

                                              -2-
became concerned that asbestos in the building used for 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 Department of Health and

Environment on April 6, 1995. The next day, Mr. Woodard and other EMS

employees attended a Board meeting to complain both about 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 meeting. Besides

discussing the asbestos problem, he alleged,      inter alia, that Mr. Klenklen

endangered the lives of patients he treated as a paramedic, 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 members, 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.


                                            -3-
Id. at 103. Mr. Rhodes was quoted in the local newspaper as calling the written

grievance “malarkey.”     Id. at 109-110. On April 11, Mr. Klenklen resigned as

the assistant director and paramedic on call, saying that he did not “want to work

with those guys anymore,” but he maintained part-time 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. Tyler 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 transfer to the sheriff’s

department. Mr. Dailey selected two EMTs/EMTIs for termination 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 personnel manual. He asked the

grievance committee to recommend his reinstatement and “payment of damages.”

Id. at 139. The grievance committee was created by the Board as part of an


1
       Although Mr. Dailey also terminated Loren Hubbard as 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-
“internal grievance procedure,” and is made up of other county employees

appointed by the Board.   Id. at 115, 116, 139. The county clerk, who acts as the

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. Woodard’s grievance committee.

Id. at 127-28, 139.

      At the hearing Mr. Woodard was represented by counsel and had an

opportunity to present evidence and cross-examine the county’s witnesses. The

grievance committee sent a letter to the Board on February 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 termination in federal district

court based on diversity jurisdiction. The district court granted summary

judgment in favor of the Board. The court found that the grievance committee

had “actually determined” the issue of whether Mr. Woodard had been terminated

in retaliation for whistle-blowing and concluded that “the Board’s decision,

although unappealed, constitutes a judgment on the merits.”   Woodard ,

108 F. Supp. 2d at 1192-93. The court held that the county was entitled to

summary judgment because Mr. Woodard’s claim was “subject to the ‘long


                                           -5-
favored application of the common-law doctrines of collateral estoppel (as to

issues) and res judicata (as to claims) to those determinations 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 judgment de novo,
       applying the same legal standard used by the district court. Under
       Fed. R. Civ. P. 56(c), summary judgment is proper only if the
       evidence, reviewed in the light most favorable to the . . . 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 court’s conclusions of law that

collateral estoppel and res judicata bar Mr. Woodard’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 Board raised 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 “jurisdiction generally must precede merits


                                               -6-
in dispositional order”). The Board argues that Mr. Woodard’s suit should be

dismissed because his exclusive remedy was to appeal 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 of “any decision” of a county

board). If Mr. Woodard’s exclusive remedy was in fact to appeal the decision

to state court under section 19-223, the federal district court should have

dismissed the suit for retaliatory discharge for lack 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 Supreme Court reviewed the

predecessor to section 19-223 and noted that county boards 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 every decision made by the board of

county commissioners.”       Id. The court held that appeals to a district court under

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


2
       Although acknowledging that, under Kansas law, failure to comply with an
exclusive remedy jurisdictionally bars collateral attack of a board’s decision by
the filing of an independent action, the district court 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-
board’s specific decision was an exercise of judicial 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 organize new townships. Finding

none, it held that the board’s decision to grant or deny 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 method 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 administrative boards or officers

empowered to investigate facts, weigh evidence, draw conclusions as a basis for

official actions, and exercise discretion of a judicial 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 after the employees filed


                                             -8-
grievances protesting their layoffs.        Larson , 850 P.2d at 255. The former

employees then filed suit in state court for wrongful termination, alleging that

they had been laid off in retaliation for exercising 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 suit because “the proper procedure

was for the plaintiffs to have appealed the decision 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 plaintiffs’ jobs, thereby

upholding the employees’ terminations, was made while the board was acting in

an administrative capacity and was therefore not subject to section 19-223 review.

Id. at 256. The Larson court concluded that it was “an appropriate procedure”

for a terminated county employee who had filed a grievance 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 witnesses were called, any counsel

represented the plaintiffs, or that the grievance had any of the attributes of

a quasi-judicial proceeding.”      Woodard , 108 F. Supp. 2d at 1190. Insofar as


                                                -9-
Larson demonstrates that a board’s decision to uphold county employee

terminations is not a quasi-judicial decision but rather 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 decision 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 erroneous 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 inconsistent with the district court’s

later statement that the Board’s unappealed-from decision 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 law 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 not make its administrative


                                             -10-
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 specific 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 termination 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 in more detail why neither the

Board nor its grievance committee have power to adjudicate termination disputes

between the county and Mr. Woodard. We need not further 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 procedure to a county board

may bring independent tort actions for retaliatory termination.         Thus, under

Larson , the federal district court had jurisdiction to hear and decide

Mr. Woodard’s retaliatory discharge claim.


                                     IV. Discussion

                                           -11-
         On the merits, we must determine whether, in a state-law tort action for

retaliatory discharge, Kansas courts (1) would give collateral estoppel effect to

“findings” of a county board’s internal grievance committee 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 decisions 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 particularly 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 Supreme 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 proceedings, 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).


                                            -12-
       A review of case law indicates that Kansas courts generally apply

preclusion principles only to findings and final decisions of (1) administrative

agencies with adjudicative powers (2) to decide the particular issue (3) when the

decision is actually a judicial, and not an administrative or managerial, decision;

(4) in a proceeding providing due process protections; 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 act--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 administrative agency.”

Legislative Coordinating Council v. Stanley        , 957 P.2d 379, 392 (Kan. 1998)

(quotation omitted).

       We therefore must initially establish that the entity 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 must 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 administrative


                                            -13-
regulation which goes beyond or conflicts with legislative authorization is void”).

“The jurisdiction of administrative agencies is usually defined in terms of

specified substantive legal provisions. . . . These 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

R ESTATEMENT (S ECOND ) OF J UDGMENTS § 83 cmt. g) (alteration in original).

Thus, in this case we decide whether either the grievance committee or the Board

has been given statutory authority to decide the private rights of the parties in

a tort action, keeping in mind that claims implicating private legal rights like

those involved in this tort action should not readily 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 rights were

historically the types of matters subject to resolution by Article III courts”).

       Further, we must consider whether the particular decision is a quasi-judicial

decision. See Hartman , 529 P.2d at 141 (stating that “[a]dministrative action

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 managerial decisions).

       If the agency meets all these requirements, we must then examine whether

there are statutory procedural protections in place that satisfy due process,


                                             -14-
including adjudication by an impartial and disinterested decision maker.

See Murphy , 837 P.2d at 1321 (noting that application of preclusion doctrines

requires “sufficient due process protections”). It is with these principles in mind

that we conduct our analysis.

      A. Collateral estoppel.

      Except in cases brought pursuant to federal anti-discrimination 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 . . . resolves disputed issues of fact

properly before it which the parties have had an adequate 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”) cannot be given collateral estoppel

effect in his suit for retaliation because the grievance committee was not acting in

a judicial capacity and the grievance process did not 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 fact implicates the

power to adjudicate.   See id. at 799. The Board cited no statute, either in its


                                         -15-
summary judgment pleadings or on appeal to this court, to indicate that Kansas

has created state administrative agencies charged with hearing grievances for

county employees or administrative tribunals to decide state-law retaliatory

discharge claims, or that the state has given the Board 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 state employees and determine

the reasonableness of the dismissal). The Board simply stated that “[u]nder its

broad ‘home rule’ powers, [it] had authority to establish and utilize grievance

procedures to hear its employees’ complaints regarding 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 courts, the grievance committee

or the Board obtained state authority to act in a quasi-judicial capacity in regard

to county employee terminations.       See generally Thompson,   493 P.2d at 1263

(indicating that for act to be “quasi-judicial,” board must be statutorily

empowered to act in a judicial manner).

       As mentioned above, the grievance committee was created 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-judicial administrative agency

or tribunal. In fact, its findings are merely advisory.   See id. at 116 (“No


                                             -16-
disciplinary action shall take effect until the Committee 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-rule authority to perform

powers of local administration,    see Kan. Stat. Ann. § 19-101a, the Board could

appoint an advisory committee to assist it in deciding whether to support one of

its department’s termination or disciplinary decisions, 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 of county, including to sue and

be sued, to purchase, hold, and sell property for county use and make orders

respecting the use of that property, to make contracts 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 powers as may be especially

conferred by law”); Kan. Stat. Ann.§ 19-212 (describing powers of board of

county commissioners); Kan. Stat. Ann. § 19-101a(a)(3) (providing that boards

“may not affect the courts located therein”). Under 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 this purpose. The grievance

committee’s “findings” (which in fact were no more than informal statements of


                                            -17-
belief) were not made with adjudicatory authority and 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 entitled to preclusive effect.

             [D]ue process requires a neutral and detached judge in
             the first instance, and the command is no different when
             a legislature delegates adjudicative functions to a private
             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 Board. Although the district court

noted that “members of the grievance committee were not from the same

department as Woodard,” and stated that the committee “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 employees ultimately

dependent upon the Board and the county for their employment.

The county employees/agents were not neutral and detached “judges” because

their employer was a party to the proceeding. The “findings” therefore may not

be given collateral estoppel effect.

      B. Res Judicata.



                                          -18-
       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 res judicata is “intrinsically

a judicial doctrine not to be applied unwittingly to legislative or executive

activities which administrative bodies are sometimes empowered to exercise in

addition to the judicial one.”   Neunzig , 722 P.2d at 573. Further, Kansas applies

the doctrine only when the administrative proceedings 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 R ESTATEMENT (S ECOND ) OF

J UDGMENTS § 83 cmt. b (“In the performance of adjudicative functions, . . .

administrative agencies are generally required by law 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, they are not quasi-judicial for the

purpose of applying res judicata: they do not represent decisions arising from the

proper exercise of adjudicatory authority. Examination of the applicable Kansas




                                            -19-
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 county 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 their county--against
      their principal--they do not act in a judicial capacity. They are not
      then a court, acting impartially between two contending parties, but
      they are simply the agents of one of the parties, and acting for such
      party.




3
       In contrast, Kansas has created independent and impartial state
administrative tribunals to adjudicate employment controversies 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 Service Act to administratively
review terminations or discipline of state public employees at the employees’
request); section 75-2929d(a) (giving CSB authority to hear appeals from
terminations of state public employment); section 75-2949 (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 involving public school teachers).

                                          -20-
Brewer , 9 Kan. 307, 1872 WL 629, at *8. Similarly, Kansas courts have held that

a county board of education’s final decision to breach 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 action for breach of employment

contract despite adverse decision by board). “City and county governing bodies

disallow both tort and contract claims at almost every meeting. . . . Thus,

a governing body’s action may set the stage for potential lawsuits, but it has

never been thought that a disappointed claimant could only appeal from the

adverse decision.”   Id.

      That is not to say that the Board has not been given any quasi-judicial

functions by the Kansas legislature. There are instances in which, in the process

of carrying out its statutory responsibilities, Kansas county boards must make

quasi-judicial decisions. One example of a quasi-judicial county board decision is

the one made after the board holds statutorily mandated hearings to determine

whether annexation of county land by a city will hinder 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 statutory proceedings brought by

third parties, a county board determines as “fence viewers” whether a partition


                                          -21-
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 decision after

sitting as “fence viewers” was quasi-judicial).

       The Board was not acting in a quasi-judicial capacity 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 decision because board was simply

authorized agent of county acting on the county’s behalf). 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 preclusion doctrines in

this case.

       No cases cited by the district court or by the appellee support a contrary

view. See Parker , 778 P.2d at 391-92 (holding that res judicata did not bar

litigation of state-law discrimination claims after both Kansas CSB and Kansas

Commission on Civil Rights had ruled adversely to plaintiff on issue of

discrimination); Gutierrez v. Bd. of County Comm’rs       , 791 F. Supp. 1529, 1533

(D. Kan. 1992) (holding, in case alleging discrimination and retaliation that


                                             -22-
Kansas courts probably would not apply res judicata principles to findings made

by state unemployment compensation referee and affirmed on appeal by the

Kansas Employment Security Board of Review).

      The cases cited by appellee that do apply preclusion principles to

administrative agency decisions bear the hallmarks discussed above: a final,

quasi-judicial decision rendered by a state-created administrative tribunal that is

not a party to the dispute and that has statutory authority 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 compensation judge statutorily

authorized to determine whether plaintiff was an employee of defendant).

      Internal personnel grievance proceedings are intended only to give the

county an opportunity to take a hard look at its agent’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 decision maker. The principles of

res judicata and collateral estoppel do not apply in this case and the district

court’s decision must be reversed.


                                            -23-
       D. Alternative arguments for dismissal or affirmance.

       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 should 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 not 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 obligation 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 fails for lack of a “judgment”

rendered by a statutorily authorized administrative tribunal. There is simply

no “judgment” here. Further, as the district court correctly noted, the




                                           -24-
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 summary judgment.

       Next, the Board asserts that summary judgment should be upheld because

there is an absence of evidence from which a reasonable jury could find that the

Board terminated Mr. Woodard’s employment in retaliation 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 facts and record summarized

in part I of our order and judgment provide ample evidence establishing that

a genuine issue of material fact exists as to why the Board decided to terminate

Mr. Woodard, we conclude that summary judgment is not appropriate. We deny

the Board’s request to affirm the district court on alternative grounds.




                                          -25-
      The judgment of the United States District Court for 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




                                       -26-
