Appeal from the United States District Court for the Eastern District of Wisconsin. No. 83-C-1774 Robert W. Warren, District Judge.
Cummings, Chief Judge, Cudahy, Circuit Judge, and Timbers, Senior Circuit Judge.*fn*
Alexander Krison appeals from a judgment entered July 17, 1984 in the Eastern District of Wisconsin, Robert W. Warren, District Judge, dismissing, pursuant to Fed. R. Civ. P. 12(b) (6), an action brought pursuant to 42 U.S.C. § 1983 (1982) alleging a denial of due process in state administrative proceedings. The district court held that prior state court proceedings barred the federal action under the doctrine of res judicata. Appellant also appeals from an order entered August 1, 1984 denying his motion for reconsideration.
For the reasons stated below, we affirm.
Appellant Alexander Krison is a retired police officer of the City of Milwaukee. Appellee Robert G. Nehls is the Secretary and Executive Director of appellee Annuity and Pension Board (the "Board") of the Employees' Retirement System of the City of Milwaukee. The Board is a municipal corporation organized under the laws of the State of Wisconsin. We shall briefly summarize only those facts and prior proceedings believed necessary to an understanding of our rulings on this appeal.
Appellant, who had been a patrolman for many years, sustained a heart attack on July 2, 1975. He thereafter required substantial surgery and medical treatment. On April 1, 1976, he filed an application for duty disability retirement in accordance with the provisions of § 36.05 of the Milwaukee City Code. This benefit is provided to "any member in active service who shall become permanently and totally incapacitated for duty as the natural and proximate result of an injury occurring at some definite time and place while in the actual performance of duty ". Milwaukee City Code § 36.05 (3) (a) (emphasis added). The Board, following the procedure set forth in § 36.05 (3), referred appellant's application to a medical panel. The panel prepared a report which was submitted to the Board on June 9, 1976. The report concluded that appellant's medical condition did not result from an injury that occurred in the actual performance of his duty as a patrolman. The Board adopted this finding and denied the application for duty disability retirement on July 16, 1976. Appellant then was advised of his right to appeal and was told that, pursuant to § 36.05 (4), if he wished to appeal, his petition for rehearing before the Board must be filed within 30 days after the Board's denial of his application. Appellant did not appeal. Instead, he elected to retire and began receiving regular retirement benefits. He alleges in the instant complaint that he did not appeal because he was not represented by counsel, he lacked medical information at that time to support his claim and, during the substantial period of time required for the appeal, he would not be eligible to receive any retirement pay.
Appellant subsequently retained counsel. On September 13, 1980, more than four years after the Board's denial of his disability application, appellant requested the Board, on the basis of newly-developed medical evidence, to permit the filing of a new application for duty disability benefits or, in the alternative, to permit the reopening of his 1976 application. The Board denied the two requests on December 23, 1980 and July 17, 1981 respectively.
Appellant then sought to appeal from the Board's original denial of his 1976 application. This was denied by the Board. He then commenced an action for a writ of certiorari in the Circuit Court of the State of Wisconsin. The Board moved to quash the writ. Oral argument was heard on March 29, 1982. The Circuit Court on August 13, 1982 granted the Board's motion to quash, holding that appellant's failure to exercise his administrative remedies in 1976 deprived both the Board and the Circuit Court of subject matter jurisdiction.
Appellant then appealed to the Wisconsin Court of Appeals from the August 13, 1982 order of the Circuit Court, raising three questions: (1) whether the provisions of § 36.05 precluded the reopening of his previously-filed application or the filing of a second application; (2) whether the Circuit Court had jurisdiction to consider his petition for certiorari; and (3) whether § 36.05, as applied to him, deprived appellant of due process. On November 8, 1983, the Court of Appeals summarily affirmed the Circuit Court order, holding that appellant's failure to appeal from the Board's initial decision within the statutory 30 day period deprived the Board of any authority to award the benefits sought. The Court of Appeals also held that the failure to raise the due process claim in the trial court constituted a waiver of that claim on appeal. The Supreme Court of Wisconsin denied appellant's petition for review.
While appellant's appeal to the Court of Appeals was pending, he moved in the Circuit Court for reconsideration of its August 13, 1982 order, explicitly raising the due process claim in that court for the first time. On December 8, 1982, the court denied the motion, holding that appellant had not given any reason under Wisconsin law for failing to present the claim initially. The court concluded that "the rule favoring finality of judgments" does not "permit a disappointed litigant to change legal theories once a case has been decided" and would "encourage litigants to try their cases in a piecemeal fashion". No appeal was taken from the December 8, 1982 order denying reconsideration.
Appellant then commenced the instant action in the Eastern District of Wisconsin pursuant to 42 U.S.C. § 1983 (1982), claiming that the Board's refusal to reopen his application or to permit the filing of a second application denied him due process. On November 14, 1983, appellees moved to dismiss the action pursuant to Fed. R. Civ. P. 12(b) (6) on the ground that it was barred by the doctrine of res judicata. On July 17, 1984, the court filed a reasoned opinion granting the motion ...