    Case: 16-40141   Document: 00513711158    Page: 1   Date Filed: 10/10/2016




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals

                              No. 16-40141
                                                                         Fifth Circuit

                                                                       FILED
                            Summary Calendar                    October 10, 2016
                                                                  Lyle W. Cayce
                                                                       Clerk
ELMER COX,
                                         Plaintiff–Appellant,
versus
NUECES COUNTY, TEXAS; JIM KAELIN, Individually,
                                         Defendants–Appellees.


                       ****************************

THOMAS BURNSIDE,
                                         Plaintiff–Appellant,
versus
NUECES COUNTY, TEXAS; JIM KAELIN, Individually,
                                         Defendants–Appellees.




                Appeal from the United States District Court
                     for the Southern District of Texas




Before JOLLY, SMITH, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge.

     Elmer Cox and Thomas Burnside appeal a summary judgment on their
42 U.S.C. § 1983 claims. Finding no error, we affirm.
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                                    No. 16-40141
                                           I.
      Cox and Burnside worked for the Nueces County Sheriff’s Department:
Burnside in the Patrol Division, Cox in the DEA Taskforce. They were re-
assigned to the Nueces County Jail: Burnside on February 3, 2012, Cox on
May 31, 2012. They contend the reassignments were based not on merit but
on political disagreement; they allege that defendant Jim Kaelin, the sheriff,
vengefully transferred them for failing to support his re-election.

      In early November 2012, both plaintiffs filed separate (though nearly
identically worded) actions, claiming that the reassignment violated their First
Amendment rights. In late March 2013, both were fired from the Sheriff’s
Department. After both complaints had survived motions to dismiss in 2014,
they amended to include wrongful-termination claims and to add Kaelin as a
defendant in addition to the county.

      Cox and Burnside also filed grievances with the Nueces County Civil
Service Commission (the “Commission”), alleging only that they were subjected
to adverse employment actions in violation of county rules prohibiting such
actions on grounds of participating or failing to participate in political activity.
The Commission consolidated the grievances and decided them against the
plaintiffs in May 2013. The next day, both plaintiffs sued in state court for
review of the decision. On March 12, 2015, the state court affirmed the Com-
mission’s decision. 1

      Armed with the state judgment, the defendants moved for summary
judgment on grounds of res judicata and estoppel.              The magistrate judge
recommended granting the motion on both grounds, but the district court ruled


      1  See Order Affirming the Decision of the Nueces County Civil Service Commission,
Burnside v. Nueces Cty. Civil Serv. Comm’n, No. 2013-DCV-2897-E (148th Dist. Ct., Nueces
Cty., Tex., Mar. 12, 2015).
                                           2
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                                        No. 16-40141
that the collateral-estoppel recommendation was moot given its finding of res
judicata, so it granted summary judgment on only the claim-preclusion ground.

                                               II.
       The plaintiffs raise two objections to the summary judgment: first, that
the district court applied the law of res judicata incorrectly, and second, that
res judicata was inappropriate because plaintiffs had deliberately abstained
from litigating their federal claims in state court. 2 Neither is persuasive.

                                               A.
       Because the claimed preclusive effect arises from a state-court judgment,
we apply Texas law to determine whether res judicata is applicable. 3 Under
Texas law, res judicata requires proof of three elements: “(1) a prior final judg-
ment on the merits by a court of competent jurisdiction; (2) identity of parties
or those in privity with them; and (3) a second action based on the same claims
as were raised or could have been raised in the first action.” 4

       Undeterred by that clear precedent, plaintiffs cited the federal standard
for res judicata in their opening brief and formulated their arguments based
on that standard. Reading those arguments as generously as possible, we can



       2 In their reply brief, Cox and Burnside abandon res judicata and instead posit that
the district court incorrectly applied collateral estoppel. That is puzzling, given that the court
specifically adopted the magistrate judge’s recommendation on res judicata and explicitly
disavowed any ruling on collateral estoppel. The reply brief never explains why collateral
estoppel remains relevant. In any event, we will not consider the collateral-estoppel point,
because “arguments raised for the first time in a reply brief . . . are waived.” United States
v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005); see also, e.g., Flex Frac Logistics, L.L.C. v.
NLRB, 746 F.3d 205, 208 (5th Cir. 2014).
       3 See Kremer v. Chem. Constr. Corp., 456 U.S. 461, 463 (1982) (holding that 28 U.S.C.
§ 1738 requires federal courts to apply state law when determining the preclusive effect of
state-court judgments).
       4Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996) (citing Tex. Water
Rights Comm’n v. Crow Iron Works, 582 S.W.2d 768, 771–72 (Tex. 1979)).
                                                3
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                                       No. 16-40141
discern one main complaint, which combines elements (1) and (3) listed above:
Because the Texas state court never decided their First Amendment claims,
there is no valid judgment on the merits as regards those claims, so res judicata
does not apply. This theory is meritless. 5

        It has been well established for more than twenty years that plaintiffs
in Texas are required to bring, in the initial suit, all possible claims arising out
of the same “transaction.” See Barr v. Resolution Tr. Corp., 837 S.W.2d 627,
630–31 (Tex. 1992). “A subsequent suit will be barred if it arises out of the
same subject matter of a previous suit and which through the exercise of dili-
gence[ ] could have been raised in a prior suit.” Id. at 631. Thus, if Cox and
Burnside could have raised their First Amendment claims in state court, and
did not, they are barred from continuing to litigate them in another suit.

       Plaintiffs appear aware of this requirement but try to avoid it by sug-
gesting that they were unable to bring their First Amendment claims in state
court because the state court’s review of the Commission’s finding was only to
insure that there was substantial evidence supporting that finding. 6 But
Texas precedent makes clear that constitutional claims can and should be
brought in state-court reviews of civil service commission findings. 7

       Indeed, this circuit has decided the issue. In Cooper v. City of Dallas,
2008 WL 3380554 (N.D. Tex. Aug. 11, 2008), the same question arose: A
plaintiff tried to prosecute two separate lawsuits, one a federal case bringing



       5 Plaintiffs also suggest that res judicata cannot apply because they filed their federal
claims first. They provide no authority for that, and we know of none.
       Plaintiffs do not appear to contest that these claims arise out of the same transaction
       6

under Texas law.
       7  See Turner v. City of Carrollton Civil Serv. Comm’n, 884 S.W.2d 889, 894 (Tex.
App.—Amarillo 1994, no writ) (“[W]e hold that appellant was entitled to raise her constitu-
tional claims in her suit seeking to set aside [the Civil Service Commission’s] ruling.”).
                                               4
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                                  No. 16-40141
various federal and state claims and the other an appeal to the Dallas Civil
Service Commission. There, as here, the state court reached a final decision
first. There, as here, defendants contended that res judicata foreclosed the
federal suit after the state court had made its decision. And there, as here,
plaintiff did not litigate her federal claims in the state-court proceeding, even
though she could have. The district court entered summary judgment for the
defendant, 2008 WL 3380554 at *1, and this circuit summarily affirmed “essen-
tially for the reasons provided in the findings and recommendations of the
magistrate judge” that the district court had adopted.      Cooper v. City of Dall.,
402 F. App’x 891, 892 (5th Cir. 2010) (per curiam).

      This case is indistinguishable from Cooper in all material respects. Cox
and Burnside could and should have brought these claims in their state suit;
their stated reasons for not doing so are inadequate to prevent res judicata.

                                        B.
      Plaintiffs claim they “abstained” from litigating their already-existing
federal claims in state court, warranting reversal. That notion is specious. A
threshold requirement for any sort of abstention is that the plaintiffs inform
the court of any request to abstain. See, e.g., Migra v. Warren City Sch. Dist.
Bd. of Educ., 465 U.S. 75, 85 n.7 (1984). The putative abstaining court must
be aware that it is abstaining from something. Id. No notice was given the
state court here; the record is bereft of evidence that plaintiffs told it that they
wished it only to decide state-law issues, preserving the federal claims for fed-
eral court. Indeed, the entire doctrine of abstention contemplates a situation
in which the plaintiff has brought both state-law and federal-law claims in
state and federal court, and here, as we have seen, plaintiffs never brought any
federal claims in a state forum. Abstention is inapposite.

      The summary judgment is AFFIRMED.
                                         5
