Can Federal Courts Rule on State Law Writ Petitions? A Current Case Explores Potential Traps for Litigators

Posted by Michael P. Stone Marc J. Berger

California public employee terminations and disciplinary actions are regularly reviewable by means of a Petition for Writ of Mandate filed in Superior Court, which ordinarily must be filed within 90 days of notification of the final administrative decision. (See California Code of Civil Procedure [“CCP”], section 1094.6.) Where the employee alleges that the termination violates a constitutional right, such as denial of due process or retaliation for free speech, the termination may also give rise to a federal civil rights claim. In such cases, the Writ Petition can be combined with a Civil Rights Complaint in state court, or can be followed with a separate Civil Rights Complaint in Federal Court. (See, e.g., Mata v. City of Los Angeles (1993) 20 Cal. App. 4th 141, 147-148.)

But these cases also raise a rather tantalizing legal issue: can the lawsuit combining the Writ Petition and Civil Rights Complaint be filed directly in Federal Court, enabling the federal judge to decide both the writ and the civil claim? Under 28 U.S.C., section 1367, federal courts may exercise “supplemental jurisdiction” over state law claims if the claim has a close factual relationship to a federal law claim. The scope of federal “supplemental jurisdiction” does not clearly include or exclude state law writ petitions, but federal courts have discretion to decline to exercise their supplemental jurisdiction for several specific reasons, including the reason that the state law claim entails resolution of a highly specialized state law issue. (See, e.g., Clemes v. Del Norte County Unified School Dist. (N.D.Cal. 1994) 843 F.Supp. 583, 596.)

This issue whether a federal court can and should exercise supplemental jurisdiction over a petition for writ of mandate is significant for at least two reasons: First, it is usually preferable to have a set of factually related legal claims heard in the same forum; and secondly, many public employees, especially in outlying districts, have greater confidence of a fair hearing in federal court than in the local superior court.

Several California public employees have attempted to bring such combination pleadings in federal court. No federal appellate court has condemned the practice. The above-cited Clemes case furnishes one example of a published district court ruling that a federal court should not accept jurisdiction over a state law petition for writ of mandate because the petition raises specialized issues of state law. Several unpublished district court decisions have followed Clemes and rejected the idea of federal jurisdiction over a writ petition, including an early ruling in the prominent California Supreme Court Spielbauer case. (See Spielbauer v. County of Santa Clara (N.D.Cal. 2004), 2004 WL 2663545.)

Our research has not disclosed any precedent where a public employee has persuaded a federal court to exercise supplemental jurisdiction over a state law petition for writ of mandate to review a termination or other employment discipline. But a recent decision of the California Court of Appeal in one of our cases has given public employees a glimmer of hope that this litigation option remains open and is reasonable to attempt. In that decision, Guevara v. Ventura County Community College District, 2008 DJDAR 18359 (December 16, 2008), the Court of Appeal of course could not rule that a federal court must or should exercise its supplemental jurisdiction, but it did rescue our client from a state court dismissal based on the 90-day CCP section 1094.6 statute of limitations for the filing of the writ petition.

The new officially published California appellate ruling gives California public employees an improved comfort level that if they attempt to persuade a federal court to accept jurisdiction over a writ petition, and the federal court does not accept jurisdiction, at least they will be able to re-file the writ petition in state court and keep their case alive. If not for this ruling, an employee could not attempt to file a writ petition in federal court without accepting a risk that if the federal court declined jurisdiction, the ruling would come too late to protect the 90-day statute of limitations for state court for such matters.

In Guevara, the employee filed a timely petition for writ of mandate in federal court, combined with a federal civil rights complaint based on termination in retaliation for free speech. After the federal court chose not to hear the writ, the employee re-filed his writ petition in state court within 30 days after the federal court dismissed the petition without prejudice. Judge Frederick H. Bysshe of the Ventura County Superior Court sustained a demurrer, effectively dismissing the re-filed state court writ petition, based on the 90-day statute of limitations!

If that ruling had been upheld, a future employee seeking to have a writ petition heard in federal court would certainly face an unacceptable risk that a discretionary federal court dismissal would not leave time to re-file in state court within the permissible 90-day period.

The Court of Appeal was unanimous in its reversal of the trial court’s ruling. Examining why the trial court erred in this case yields some interesting observations.

Federal supplemental jurisdiction is codified in 28 U.S.C. Section 1367(a), which provides that federal courts may exercise subject matter jurisdiction over factually related claims. Section 1367(d), provides essentially that “for any claim asserted under subsection (a)” over which the federal court declines to exercise its supplemental jurisdiction, the statute of limitations for re-filing in state court is extended until 30 days after the federal court dismissal (“the Fail-Safe clause”).

Officer Guevara’s complaint alleged that he was terminated by a governmental employer in retaliation for exercising his First Amendment rights, a constitutional claim under 42 U.S.C. section 1983. This is certainly a federal claim.

But the College District argued, and Judge Bysshe agreed, that in this instance, the federal district court did not have original jurisdiction over Guevara’s federal civil rights claim!

The case should not have become difficult or complex. Guevara believed that as long as the plaintiff’s federal court complaint “asserts” that the federal court has original jurisdiction over his First Amendment claim in the case, and that there is a factually related state law claim within the federal court’s supplemental jurisdiction. If the federal court dismissed the state law claim because it declined to exercise its supplemental jurisdiction, Guevara should have an additional 30 days after the federal dismissal to re-file the state claim in state court.

The College District, however, argued that unless the federal court actually “asserts” its federal subject matter jurisdiction, the Fail-Safe clause does not apply. Seizing on certain reasoning in the federal court’s dismissal order in the case, the College District argued that the federal court did not assert its subject matter jurisdiction in this case, and consequently, Guevara did not have an additional 30 days to re-file the writ petition in state court.

Though Guevara’s combined pleading contained a state law petition for administrative mandamus, and acknowledged that a favorable ruling on the writ petition was prerequisite to his ability to prevail on the federal civil rights claim, the federal court had the discretion to decline to exercise supplemental jurisdiction, and elected to decline and to permit the writ petition to be decided by the state court.

If the petition for mandamus was denied and the termination thus held legally valid, then a subsequent claim that Guevara was terminated in retaliation for exercise of free speech would be precluded because it would amount to an attempt to re-litigate the termination in a subsequent legal action. In reciting that situation, however, the federal court dismissed Guevara’s complaint, but did so without prejudice to renewing the federal claims if they were still viable after Guevara exhausted his state court judicial remedy of a mandamus petition.

The federal court thus envisioned that Guevara would be permitted to re-file his mandamus petition in state court, but phrased its order in a way that made it appear as if the federal court’s own jurisdiction depended on the state court’s decision on the writ petition. When Guevara re-filed his writ petition in state court, the College District argued that the federal court had never taken jurisdiction over Guevara’s federal civil rights claim, and therefore, the Fail-Safe clause did not apply. Judge Bysshe essentially agreed with both propositions. The College District and Judge Bysshe were fully prepared to treat Guevara’s writ petition contained in the federal pleading as a complete nullity.

Guevara was thus constrained to argue that even if the state courts were to finally decide that the section 1983 claims were barred, the federal court would still not lack original jurisdiction over the section 1983 claims, but would need to exercise jurisdiction, receive the evidence of the finality of the termination, and find the preclusion doctrine applicable to that evidence. Guevara returned to the plain-language argument that the applicability of the Fail-Safe clause does not depend on the federal court’s stated reasons for dismissal, nor on its actual reasons for dismissal, and that these dimensions need not be explored because the only test for the applicability of the fail-safe clause is that the plaintiff “assert” federal and supplemental jurisdiction.

As shown by the Court of Appeal’s clear and succinct opinion, treating the word “asserted” in the Fail-Safe clause as referring to a federal court’s actual assertion of jurisdiction leads to detailed examination of the federal court’s reasons for dismissal, and to careful parsing of the statute to determine whether there is a prerequisite to the applicability of the Fail-Safe clause based on whether the court finds that it has subject matter jurisdiction, and if so, exactly what that prerequisite is. On the other hand, treating the statutory term “asserted” as requiring no more than that the pleader “assert” the existence of federal and supplemental jurisdiction avoids this entire line of inquiry into the federal court’s reasons for dismissal, and produces predictable, common-sense, and fair outcomes.

As mentioned above, almost all federal courts that have been asked to take supplemental jurisdiction over California law writ petitions have declined. A clear rule making state court the exclusive forum for administrative mandamus would relieve some burden that the federal courts face in evaluating and rejecting assertions of supplemental jurisdiction over this type of proceeding. But there is no indication that federal courts consider this a burden, and even if the federal courts tend to decline to exercise this potential jurisdiction, the preservation of at least a theoretical potential for an exercise of supplemental jurisdiction stands consistent with the overall protection of federal court jurisdiction to hear federal claims.

If it were the intention of the state legislature to make state courts the exclusive forum for hearing petitions for administrative mandamus, the legislature could seek to accomplish this goal through explicit statutory language. A Hawaii state court adopted such a statute, and it was upheld by the Ninth Circuit in Misischia v. Pirie (9th Cir. 1995) 60 F.3d 626, 628. It should be noted that some federal courts have invalidated such state statutes under the constitutional Supremacy clause, as an unconstitutional encroachment on the jurisdiction of the federal courts. Davet v. City of Cleveland (6th Cir. 2006) 456 F.3d 549, 554; Thompkins v. Stuttgart School Dist. (8th Cir. 1985) 787 F.2d 439, 441.)

The College District in Guevara cited approximately ten cases that in its view held state court is the exclusive forum for administrative mandamus, but Guevara successfully distinguished each of those cited authorities, showing that no court has definitively adopted such a rule.

Of course, if the federal courts were categorically deprived of supplemental jurisdiction over administrative mandamus, it would mean that an employee desiring to bring a federal claim in federal court could not proceed until first filing and prevailing in state court. The result would be that the dispute would be heard separately in two courts instead of together in one court. Another result would be that the writ petition could no longer be combined with a civil complaint, and it would become necessary to file and prevail in the writ petition before even filing the civil complaint.

As stated above, it has been recognized at least since the Mata decision in 1993 that a pleading combining administrative mandamus with civil rights relief is proper, at least in state court.

On balance, there appears to be no compelling reason to eliminate federal court jurisdiction over administrative mandamus. If this is done, then any employee who wants to bring a federal civil rights claim against the employer in federal court will be forced to litigate successively in two separate courts. The employee could file a combined claim in state court, but would be giving up the right to have a federal forum to decide claims that arise under federal law, one of the most valuable rights that are created by the existence of federal civil rights statutes.

There is no compelling reason either for legislation to ban the practice of combining a writ petition with a civil complaint, or to require the employee to wait until the writ petition is finally resolved before filing the civil action. By means of the presently-tolerated combined pleading, an employee who may be entitled to civil relief on the same facts that will be reviewed in the writ proceedings is able to give notice to the employer of its need to prepare to defend the civil claim at the same time as giving notice of judicial review of the disciplinary action. If employees were forced to await final appellate resolution of writ proceedings before filing related civil claims, the statute of limitations for the civil claims would be tolled during the pendency of the writ proceedings, but this would mean that the employer would often not receive formal notice of the civil claim until four or five years after the relevant events.

The Guevara decision that was handed down will preserve at least a theoretical right to continue to file combined pleadings in federal court. But what happened to Guevara in this case, and the willingness of a superior court judge to accept the College District’s jurisdictional arguments in the case, may well deter some employees from seeking the vindication of their rights in federal courts, and may result in more cases being channeled into multiple streams of litigation in different bodies examining the same set of facts.

This may or may not be a desirable result. But it should not be left to the vagaries of litigation to establish this type of procedural regime. State legislators are obviously aware that various procedural options for review of administrative decisions currently co-exist, and should expect that unless they act to clarify the validity of these various options, employees and employers alike will face a convoluted and interlocking set of procedural rules and deadlines that create an unnecessary side show to the process of reviewing public employment discipline decisions. Meanwhile, the authors herein will continue to strive for greater clarification of the procedural requirements and options in this burgeoning field of litigation. STAY SAFE

Michael P. Stone and Marc J. Berger Michael P. Stone is the firm’s founding partner and principal shareholder. He has practiced almost exclusively in police law and litigation for 28 years, following 13 years as a police officer, supervisor and police attorney. Marc J. Berger is the firm’s senior writs and appeals specialist. He has been associated with Michael P. Stone since 1986.