Defendants' motion for summary judgment is premised on four grounds. Because the first, res judicata, disposes of this action, the court addresses only that ground.
A. Reservation of Rights
CPUC contends that UPS cannot litigate its federal equal protection claim in this action because the Supreme Court of California had an opportunity to rule on that claim and its denial of review has conclusive res judicata effect in this court. In response, UPS argues that the denial of review does not have res judicata effect in this court because in its petition for review with the Supreme Court of California UPS specifically reserved its right to litigate its federal claim in federal court.
In England v. Louisiana State Bd. of Med. Exam., 375 U.S. 411, 11 L. Ed. 2d 440, 84 S. Ct. 461 (1964), the Supreme Court held that "if a party freely and without reservation submits his federal claims for decision by the state courts, litigates them there, and has them decided there, then . . . he has elected to forgo his right to return to [federal] district court." Id. at 419. Courts have since interpreted England to mean that if a party does not freely and without reservation submit federal claims to state court adjudication the party retains the right to return to federal court. See Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 85 n.7, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984) (plaintiff forced to litigate an action involving federal claims in state court "can preserve his right to a federal forum for his federal claims by informing the state court of his intention to return to federal court on his federal claims"); Tovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir. 1980) (specific reservation of right to return to federal court by plaintiff in state action rebuts claim that plaintiff freely and without reservation submitted federal claims to state court adjudication).
Reservation of rights under England, however, is a narrow exception to the normal rules of res judicata and is not automatically available to every state court plaintiff with federal claims. Tarpley v. Salerno, 803 F.2d 57, 59-60 (2d Cir. 1986). That is, England itself speaks only to circumstances where a plaintiff with federal claims files first in federal court and is then forced to litigate in state court because of federal court abstention. England, 375 U.S. at 412-15. The rationale behind the rule articulated in England is the notion that "there are fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be compelled, without his consent and through no fault of his own, to accept instead a state court's determination of those claims." Id. at 415 (emphasis supplied). Indeed, while the Supreme Court has not specifically addressed the issue, every circuit to consider the question has limited application of England to circumstances where federal court jurisdiction has been invoked first and the federal court abstains, thereby forcing the plaintiff to litigate any federal claims first in state court. Furthermore, most of these circuits limit England's application solely to circumstances where the federal court has abstained pursuant to Railroad Comm'n v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941). See Temple of the Lost Sheep, Inc. v. Abrams, 930 F.2d 178, 182-83 (2d Cir.), cert. denied, U.S. , 116 L. Ed. 2d 153, 112 S. Ct. 193 (1991) (England applies only in Pullman abstention, not Younger abstention where the federal court must respect the ability of state courts to resolve federal claims); Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1072 (3d Cir. 1990) (plaintiff who filed first in federal court and was forced to litigate first in state court against its will was entitled to reserve its right to return to federal court); Duty Free Shop, Inc. v. Administracion De Terrenos De Puerto Rico, 889 F.2d 1181, 1183 (1st Cir. 1989) (England applies only in Pullman abstention, not Younger abstention which is premised on a reluctance to interfere with state court resolution of federal and state claims); Schuster v. Martin, 861 F.2d 1369, 1374 (5th Cir. 1988) (England applies only where there has first been abstention by a federal court), reh'g denied, 866 F.2d 1417 (5th Cir. 1989); Tarpley v. Salerno, 803 F.2d 57, 60 (2d Cir. 1986) (same).
Under the England doctrine thus developed, the proper threshold inquiry is not whether UPS reserved its right in its petition for review with the Supreme Court of California to litigate its federal claims in federal court, but rather whether UPS was forced to litigate in state court against its will.
The facts reveal that on June 9, 1993, the same date this action was filed, UPS filed for review with the Supreme Court of California. At no point, however, did this court abstain in the federal action and force UPS to litigate its claims in state court. Further, nothing in the California statutory scheme required UPS to pursue review of the CPUC decision in the Supreme Court of California -- it chose to avail itself of both forums of its own volition.
That fact alone makes UPS's attempt to reserve its right to litigate its federal claim in federal court irrelevant. This conclusion is bolstered by the fact that, contrary to its contention now, UPS actually presented and argued its federal equal protection claim in its petition to the Supreme Court of California in spite of its purported reservation of that claim for federal review.
UPS attempts to escape this result by arguing that it filed simultaneous actions with the expectation that this court would abstain pending resolution of the state court action. This argument is unpersuasive. If resolution of its federal claim in a federal forum was of the paramount importance it now asserts, UPS could have chosen simply to file its action in federal court. Or, having filed both actions UPS could have tried to accelerate these proceedings by filing for early injunctive or declaratory relief. Instead, however, it appears that UPS was intent not upon federal court adjudication of its claims, but rather on obtaining review of its federal claim in as many forums as possible; to that end it presented its federal equal protection claim in both forums. As the First Circuit has held, "England does not afford a litigant two bites at the apple. Where, as here, a litigant has raised its federal claim in a state court, it may not subsequently relitigate the same claim in a federal court without doing violence to well-settled principles of finality and repose." Fuller Co. v. Ramon I. Gil, Inc., 782 F.2d 306, 312 (1st Cir. 1986); see also Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 85 n.7, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984) (allowing plaintiff to invoke England inappropriate where plaintiff "was in an offensive posture in her state-court proceeding, and could have proceeded first in federal court had she wanted to litigate her federal claim in a federal forum").
To allow UPS, which made a conscious choice to bring its federal claim in both federal and state court, to take advantage of the narrow England doctrine would violate the fundamental principle underlying that doctrine, namely that a federal court plaintiff with federal claims that is against its will forced to litigate its action first in state court should have the right to reserve its federal claims for federal court adjudication. UPS is not such a plaintiff, and, having chosen to bite the apple in state court, its attempt to reserve its right to federal court adjudication of its federal claim fails.
B. Preclusive Effect
Under the federal full faith and credit statute, 28 U.S.C. § 1738, "it is now settled that a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984). Accordingly, if the denial of review by the Supreme Court of California would have res judicata effect on California courts as to those claims raised in the petition, then that denial is res judicata in this court.
It is well established under California law that denial of review of a CPUC decision by the Supreme Court of California without opinion constitutes a final judgment and is res judicata in federal court. Pacific Tel. and Tel. Co. v. P.U.C. of State of Cal., 600 F.2d 1309, 1311-12 (9th Cir.), cert. denied, 444 U.S. 920, 62 L. Ed. 2d 176, 100 S. Ct. 239, 100 S. Ct. 240 (1979) (reaffirming the continuing vitality of Napa Valley Electric Co. v. Railroad Comm'n, 251 U.S. 366, 64 L. Ed. 310, 40 S. Ct. 174 (1920)).
As explained above, despite its current protestations to the contrary UPS did raise its federal equal protection claim in its petition for review with the Supreme Court of California. That court denied review of the CPUC decision without opinion, and that denial is entitled to res judicata effect in this court. Accordingly, CPUC is entitled to summary judgment on res judicata grounds.
For the foregoing reasons, the court hereby GRANTS defendants' motion for summary judgment.
IT IS SO ORDERED.
Dated: December 2, 1993
MARILYN HALL PATEL
United States District Judge