In the
United States Court of Appeals
For the Seventh Circuit

Nos. 00-3271 & 00-3486

Draphy Durgins,

Plaintiff-Appellee,

v.

City of East St. Louis, Illinois, et al.,

Defendants-Appellants.

Appeals from the United States District Court
for the Southern District of Illinois.
No. 97-933--William L. Beatty, Judge.

Argued October 30, 2001--Decided November 16, 2001



  Before Easterbrook, Rovner, and Williams,
Circuit Judges.

  Easterbrook, Circuit Judge. While on duty
as a patrol officer of the East St. Louis
police, Draphy Durgins and two colleagues
took time out for horseplay. Aubrey
Keller threw some of Durgins’s bullets on
the floor. She responded by swiping some
of Keller’s bullets, and he then took her
knife. Missing equipment or ammunition
can cause problems if the department
holds a surprise inspection, and when one
was held Keller flunked. With Bobby
Cole’s assistance, Keller decided to play
keep-away from Durgins with her knife,
while she held onto the bullets. The
frolic continued when Keller and Cole
handcuffed Durgins to a fence with her
apparent consent. She called on the radio
for help, and with sirens blaring two
cruisers appeared to free her. Durgins
refused help until a lieutenant arrived,
then expressed contentment at an injury
(a strained shoulder attributable to the
handcuffing) that enabled her to take the
weekend off without using vacation days.

  Keller and Cole were disciplined for
this incident; Durgins was not. She filed
an administrative complaint contending
that the discipline of Cole and Keller
should have been more severe. This led to
an investigation of all three officers--
and in the course of this investigation
the department came upon information
leading it to believe that Durgins had
concealed a criminal record. She was
suspended and then fired (more for
falsifying credentials than for the
convictions themselves), the City’s Board
of Police and Fire Commissioners
sustained the discharge, and a state
court declined to overturn the Board’s
decision. Next Durgins filed this federal
suit under 42 U.S.C. sec.1983, contending
that her discharge penalized her right of
free speech, particularly her complaint
about the discipline of her fellow
officers. A jury awarded her $175,000 in
damages, to which the judge added
attorneys’ fees and an injunction
requiring the City to reinstate her
notwithstanding the outcome of the state
litigation. The City and its Chief of
Police have appealed.

  It is hard to see how any constitutional
claim is presented by this intramural
squabble, given the principle that
communications about personnel matters
are not covered by the first amendment.
See, e.g., Connick v. Myers, 461 U.S. 138
(1983); Waters v. Churchill, 511 U.S. 661
(1994); Taylor v. Carmouche, 214 F.3d 788
(7th Cir. 2000). Durgins’s submission
that the public has an interest in how
police departments handle their personnel
systems is a thinly veiled request to
disregard Connick and treat all speech
within a public bureaucracy as protected
by the first amendment. Moreover, even if
the personnel dispute were covered by the
first amendment, it is difficult to see
how reinstatement could be justified;
resume fraud is not protected speech, and
an employer that finds during an
investigation (or even during discovery)
that it should not have hired the person
in the first place may decide to end the
employment without any objection that
this is "retaliation" for the speech, the
original complaint, or the suit. See
McKennon v. Nashville Banner Publishing
Co., 513 U.S. 352 (1995). Perhaps Durgins
has some way around these obstacles; we
need not decide, because her suit should
have been dismissed at the threshold.

  Durgins had a hearing before the Board
of Police and Fire Commissioners, which
concluded that she had falsified her
credentials. She had, and used, an
opportunity to obtain review in state
court. There she could have argued not
only that the Board acted on insufficient
evidence, or used improper procedures,
but also that the City initiated the dis
charge proceedings in retaliation for
protected speech. Such a constitutional
objection could not have been resolved on
the record before the Board, but Illinois
permits constitutional claims (including
those based on 42 U.S.C. sec.1983) to be
joined with administrative-review
proceedings and explored in discovery.
See Stratton v. Wenona Community Unit
District No. 1, 133 Ill. 2d 413, 429-30,
551 N.E.2d 640, 646-47 (1990). Durgins
therefore could have presented all of her
theories--evidentiary, statutory, and
constitutional--to the state court and
obtained a decision in one consolidated
proceeding. Instead she split her
theories between courts and must surmount
the City’s defense of claim preclusion
(also known as res judicata). The
district court rejected this defense,
observing that the record of the state-
court proceeding does not show that
Durgins presented her constitutional
theories to that tribunal. This assumes
that Illinois, whose law governs the
preclusive effect of its own judgments,
see 28 U.S.C. sec.1738, permits a
litigant to withhold a legal theory and
sue a second time. Yet Illinois, like
other states, applies the doctrine of
merger and bar, precluding sequential
pursuit not only of legal theories
actually litigated but also of those that
could have been litigated in the first
action. See People ex rel. Burris v.
Progressive Land Developers, Inc., 151
Ill. 2d 285, 295-96, 602 N.E.2d 820, 825
(1992); Henry v. Farmer City State Bank,
808 F.2d 1228, 1234 (7th Cir. 1986)
(summarizing Illinois law).

  Because Illinois (a) permits the joinder
of sec.1983 claims with administrative-
review actions, and (b) applies the
doctrine of merger and bar, we have held
that an administrative-review action
forecloses any later sec.1983 action in
federal court arising out of the same
transaction. See, e.g., Manley v.
Chicago, 236 F.3d 392 (7th Cir. 2001);
Davis v. Chicago, 53 F.3d 801 (7th Cir.
1995); Pirela v. North Aurora, 935 F.2d
909, 913-14 (7th Cir. 1991); Hagee v.
Evanston, 729 F.2d 510, 513-14 (7th Cir.
1984). See also Charles Koen & Associates
v. Cairo, 909 F.2d 992 (7th Cir. 1990);
Button v. Harden, 814 F.2d 382 (7th Cir.
1987); Frier v. Vandalia, 770 F.2d 699
(7th Cir. 1985). Several of these
opinions recognized that they depended on
a prediction that the Supreme Court of
Illinois would decide to apply the same-
transaction approach to the law of
preclusion rather than the same-evidence
approach. State appellate courts were
divided on that question. If the state’s
highest court were to adopt the same-
evidence approach, then the scope of
preclusion would be contracted. For
example, Durgins would not have needed to
present her retaliation theory to the
state court, because it depended on
evidence other than that before the
Board, even though it involved the same
transaction (her discipline and
discharge). Not long ago the Supreme
Court of Illinois confronted the issue
and chose the transactional approach. See
River Park v. Highland Park, 184 Ill. 2d
290, 703 N.E.2d 883 (1998). This confirms
the prediction made in our decisions and
establishes that Durgins is precluded
from pursuing her claim.

  A brief word is in order about the
Rooker-Feldman doctrine, named after
Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923), and District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462
(1983). This doctrine stands for the
principle that decisions of state courts
may not be challenged in litigation under
sec.1983; instead the aggrieved party
must pursue all remedies through the
state system and then seek certiorari
under 28 U.S.C. sec.1257. Although Davis,
Pirela, Hagee, and similar cases apply
the doctrine of claim preclusion--which
means that defendants are entitled to
judgment on the merits--Manley applied
the Rooker-Feldman doctrine to materially
identical circumstances. When Rooker-
Feldman applies, there is no federal
jurisdiction and a dismissal is not on
the merits. Normally the Rooker-Feldman
doctrine applies when the injury is
inflicted by the state court’s decision,
while if all the state court has done is
fail to rectify an injury caused by some
other actor then claim preclusion is the
appropriate doctrine. See, e.g., Homola
v. McNamara, 59 F.3d 647 (7th Cir. 1995);
GASH Associates v. Rosemont, 995 F.2d 726
(7th Cir. 1993). This understanding
places a suit such as Durgins’s on the
preclusion side of the line: the injury
comes from her discharge, not from the
state court’s failure to order her
reinstatement.

  Manley applied the Rooker-Feldman
doctrine not because of any disagreement
with this understanding (or with the
holdings of Davis, Pirela, and Hagee) but
because the parties themselves couched
their arguments in Rooker- Feldman terms.
The district court dismissed Manley’s
suit under the Rooker-Feldman doctrine.
Instead of arguing that preclusion rather
than Rooker-Feldman is the right lens,
Manley contended that "his claims should
not have been dismissed under the Rooker-
Feldman doctrine because they could not
have been brought in state court." 236
F.3d at 396. This "because" clause
concerns the scope of claim preclusion--
particularly, the propriety of joinder in
state court--rather than any subject that
matters to application of the Rooker-
Feldman doctrine. In sum, Manley is a
preclusion decision in Rooker-Feldman
clothing. We understand it as a
preclusion decision because otherwise it
would effectively overrule Davis, Pirela,
and Hagee, three decisions that it
avowedly followed. Thus Durgins’s claim
should be dismissed on the basis of the
City’s affirmative defense of preclusion,
not for lack of jurisdiction.

Reversed
