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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Emily Roseberry v. North Slope Borough School District and North Slope Borough School District Board of Education (5/9/2025) sp-7766
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
EMILY ROSEBERRY, )
) Supreme Court No. S-18842
Appellant, )
) Superior Court No. 2BA-22-00320 CI
v. )
) O P I N I O N
NORTH SLOPE BOROUGH SCHOOL )
DISTRICT and NORTH SLOPE ) No. 7766 - May 9, 2025
BOROUGH SCHOOL DISTRICT )
BOARD OF EDUCATION, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska,
Second Judicial District, Utqiaġvik, David L. Roghair,
Judge.
Appearances: Isaac D. Zorea, Anchorage, for Appellant.
Matthew Singer and Andrew P. March, Schwabe,
Williamson & Wyatt, P.C., Anchorage, for Appellees.
Before: Maassen, Chief Justice, and Carney, Borghesan,
Henderson, and Pate, Justices.
MAASSEN, Chief Justice.
INTRODUCTION
The former principal of a charter school alleged that the school district
superintendent overstepped her authority in violation of Alaska statutes and the
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governing charter school contract and bylaws. The principal was fired after making
complaints about the superintendent's conduct to the superintendent, the board of
education, and an independent commission.
The principal filed suit in federal court, raising both federal civil rights
claims and a state whistleblower claim. Her federal claims were dismissed with
prejudice, and the court declined to exercise supplemental jurisdiction over the state
whistleblower claim. The principal then filed suit in state court, bringing the
whistleblower claim and three additional state-law claims. The defendants moved to
dismiss, arguing that the claims were all barred by issue and claim preclusion; the
superior court agreed and dismissed the complaint. The principal appealed.
We conclude that the principal's state claims are not barred by issue and
claim preclusion. We therefore reverse the superior court's judgment and remand for
further proceedings consistent with this opinion.
FACTS AND PROCEEDINGS
A. Facts
In July 2020 Emily Roseberry began work as the principal of Qargi
Academy, a charter school in the North Slope Borough School District.1 Shortly after
she began her duties as principal, several disputes arose between her and the District;
she identifies these as primarily involving "contract compliance issues concerning the
[Academy's] statutory independence," interference with her access to the Academy's
financial records and bank accounts, and the District's handling of allegations of an
inappropriate relationship between one of Qargi's teachers and a District student.
1 This case involves an appeal from a grant of a motion to dismiss for
failure to state a claim under Alaska Civil Rule 12(b)(6). We therefore accept the
allegations in the complaint as true and draw all reasonable inferences in favor of the
nonmoving party. Est. of Mickelsen ex rel. Mickelsen v. N.- Wend Foods, Inc., 274
P.3d 1193, 1197 (Alaska 2012).
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Roseberry took issue with an internal report summarizing the latter dispute, then filed
two complaints with the Professional Teaching Practices Commission; she asserted
that the District's superintendent, Pauline Harvey, mishandled the dispute and in so
doing violated Qargi Academy's contract, Alaska statutes governing the operation of
charter schools,2 and the teaching code of ethics, making her subject to discipline under
Alaska law.3 Following her complaints Roseberry was placed on administrative leave,
and a week later she was fired. She asserts that her termination was at the direction of
Qaiyaan Harcharek, a member of the District Board of Education. Roseberry brought
suit first in federal court, then in state court, based on the circumstances surrounding
her termination.
B. Proceedings
1. Federal case
In April 2021 Roseberry brought suit in the United States District Court
for the District of Alaska against Harvey, Board member Harcharek, and the District.
She asserted a § 1983 federal civil rights claim4 alleging that Harvey and Harcharek
used their authority as state actors to deprive her of constitutional protections:
specifically that Harvey violated her rights under the First Amendment and that both
Harvey and Harcharek violated her due process rights. She also alleged that the
District violated the Alaska Whistleblower Act5 by allowing "Harvey to discharge her
2 See AS 14.03.255.
3 See 20 Alaska Administrative Code (AAC) 10.020(a); AS 14.20.030.
4 42 U.S.C. § 1983 creates a private right of action against "[e]very person
who, under color of any statute, ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen
of the United States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws."
5 AS 39.90.100-.150.
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for speaking on matters of public concern related to Harvey's violation of Qargi's
Charter Contract and Alaska Statutes."
The defendants moved to dismiss the complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6). They argued that Roseberry's First Amendment claims
failed because her speech was not addressing a matter of public concern and was
therefore not constitutionally protected and that her due process claims failed because
they rested on her "erroneous interpretation of the Alaska statute that governs the
organization and operation of charter schools." The federal court agreed and dismissed
Roseberry's complaint with leave to amend, reasoning that although she had not
plausibly alleged a § 1983 claim, she could perhaps do so in an amended complaint.
As for Roseberry's state Whistleblower Act claim, the court declined to exercise
supplemental jurisdiction over it once it had dismissed all claims over which it had
original jurisdiction.
Roseberry filed her amended complaint in September, removing the
District as a defendant and adding the Board. She again alleged First Amendment and
due process claims against Harvey and Harcharek. She reasserted her claim under the
Alaska Whistleblower Act but this time against the Board. Again, the defendants
moved to dismiss her complaint.
The federal court granted the defendants' motion in January 2022.
Regarding Roseberry's First Amendment claims, the court held that "[t]he
disagreement between plaintiff and defendant Harvey with respect to plaintiff's
authority to supervise Qargi Academy amounted to a power struggle" and not a
constitutional violation; it reasoned that when public employees like Roseberry make
statements pursuant to their official duties they are not speaking as citizens for First
Amendment purposes, and the constitution does not insulate their communications
from disciplinary processes. The court also dismissed Roseberry's due process claims,
observing that she had failed to identify "which of her alleged liberty or property
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interests [were] entitled to procedural due process protections" or to allege "that the
procedures by which she was terminated were constitutionally infirm." The court
therefore dismissed all of "Roseberry's § 1983 First Amendment and substantive and
procedural due process claims . . . with prejudice." It also "decline[d] supplemental
jurisdiction over [her] state law whistleblower claims and dismisse[d] them without
prejudice."
2. State case
Roseberry filed a complaint in Alaska superior court about a year later,
naming the District and the Board as defendants. The factual allegations were largely
the same as they had been in her federal complaint. Roseberry again asserted a claim
under the Alaska Whistleblower Act, as she had in federal court, but she added three
new state-law claims: intentional interference with contractual relations by Harvey,
negligent supervision of Harvey by the Board, and defamation by Harvey.
The defendants (collectively "the District") filed a motion to dismiss,
asserting that the disposition of Roseberry's state action was governed by the federal
court judgment. The District contended that her new claims - intentional
interference, negligent supervision, and defamation - were barred by claim preclusion
because she could have raised them in her federal court action but failed to do so. It
argued that her Whistleblower Act claim was barred by issue preclusion because the
federal court, in dismissing her First Amendment claim with prejudice, had decided
that the speech for which she sought protection did not involve a matter of public
concern - a necessary element of the whistleblower claim as well.
The superior court granted the District's motion to dismiss, implicitly
adopting the District's arguments. Roseberry moved for reconsideration, which was
denied.
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STANDARD OF REVIEW
"A grant of a motion to dismiss a complaint for failure to state a claim
under Alaska Civil Rule 12(b)(6) is reviewed de novo."6 "The question whether res
7
judicata or collateral estoppel applies is a question of law, which we review de novo."
DISCUSSION
A. Roseberry's Alaska Whistleblower Act Claim Is Not Barred By Issue
Preclusion Because "Matter Of Public Concern" Is Defined
Differently Under The Whistleblower Act And First Amendment
Law.
In its order granting the District's motion to dismiss, the superior court
noted that it was "relying on judicial notice of [the] prior proceeding in Federal Court"
but did not otherwise explain its reasoning. We assume, therefore, that it accepted the
arguments of the District as the moving party.8 The District argued in its motion that
because the federal court dismissed Roseberry's First Amendment claim on grounds
that she was not speaking on a matter of public concern, the issue of whether Roseberry
was speaking on a matter of public concern for purposes of the Alaska Whistleblower
Act had been decided as well, and litigating it again in state court was barred by the
doctrine of issue preclusion.
6 Patterson v. Walker, 429 P.3d 829, 831 (Alaska 2018) (quoting Bachner
Co. v. State, 387 P.3d 16, 20 (Alaska 2016)).
7 Renwick v. State, Bd. of Marine Pilots, 971 P.2d 631, 633 (Alaska 1999).
8 See Alaska Wildlife All. v. State, 74 P.3d 201, 206-07 (Alaska 2003)
(explaining that when trial court does not explicitly state its reasons for dismissal, we
attempt to discern its rationale "from the parties' motion papers" and subsequent
orders).
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The doctrine of issue preclusion9 "precludes relitigation of a previously
determined issue where the first action is brought in a federal court and a second action
is brought in state court."10 "The preclusive effect of a federal-court judgment is
determined by federal common law."11 For preclusion to apply, "the moving party
must demonstrate that the party against whom preclusion is sought was a party to the
prior action, or in privity with a party to the prior action."12 Roseberry, the party
against whom preclusion was sought, was a party to both actions, so this requirement
is clearly satisfied.
Federal law also requires that the party asserting issue preclusion
demonstrate that "the issue at stake was identical in both proceedings."13 Four factors
should be considered when determining whether the issues are identical:
(1) Is there a substantial overlap between the evidence or
argument to be advanced in the second proceeding and that
advanced in the first?
(2) Does the new evidence or argument involve the
application of the same rule of law as that involved in the
prior proceeding?
(3) Could pretrial preparation and discovery related to the
matter presented in the first action reasonably be expected
9 The phrases "issue preclusion" and "collateral estoppel" are
interchangeable. See, e.g., Latham v. Palin , 251 P.3d 341, 344 (Alaska 2011). For the
sake of consistency, we use "issue preclusion" throughout this opinion.
10 Sopcak v. N. Mountain Helicopter Servs., 924 P.2d 1006, 1008 (Alaska
1996).
11 Taylor v. Sturgell, 553 U.S. 880, 891 (2008).
12 Mertens v. Black , 948 F.2d 1105, 1106 (9th Cir. 1991).
13 Oyeniran v. Holder, 672 F.3d 800, 806 (9th Cir. 2012). The party
asserting issue preclusion must also show that "(2) the issue was actually litigated and
decided in the prior proceedings; (3) there was a full and fair opportunity to litigate the
issue; and (4) the issue was necessary to decide the merits." Id . We do not discuss
these elements today because the lack of identity of issues is decisive.
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to have embraced the matter sought to be presented in the
second?
(4) How closely related are the claims involved in the two
proceedings?[14]
Factors (1), (3), and (4) are easily resolved in this case. Because the speech at issue in
both the federal § 1983 claims and the Alaska Whistleblower Act claim is the same,
there is "substantial overlap between the evidence or argument to be advanced" in the
federal and state cases, and pretrial preparation and discovery would also be very
similar if not the same.15 The claims are also closely related because of their subject
16
matter.
Factor (2), "the application of the same rule of law," requires closer
analysis. "Issues are not identical if the second action involves application of a
different legal standard, even though the factual setting[s] of both suits [are] the
same."17 While both First Amendment claims and the Whistleblower Act require that
speech must address a matter of public concern to qualify for protection, they employ
different definitions of "matter of public concern."
14 Sec. & Exch. Comm 'n v. Stein, 906 F.3d 823, 828-29 (9th Cir. 2018)
(quoting Howard v. City of Coos Bay, 871 F.3d 1032, 1041 (9th Cir. 2017)). Alaska
preclusion law employs the same standard. Allstate Ins. Co. v. Kenick , 435 P.3d 938,
945 (Alaska 2019).
15 See Sec. & Exch. Comm 'n, 906 F.3d at 829 (quoting Howard, 871 F.3d
at 1041).
16 See Reynaga v. Sun Studs, Inc., 97 F. App'x 729, 731 (9th Cir. 2004)
(unpublished) (finding claims closely related when second claim was motivated by
denial of relief in first claim); cf. Loomis v. United States, 642 F. Supp. 3d 1199, 1212-
13 (D. Idaho 2022) (finding claims not closely related because they involved entirely
different elements), aff'd sub nom. Loomis v. U.S. Internal Revenue Serv., No. 22-
36055, 2024 WL 2826226 (9th Cir. June 4, 2024).
17 Peterson v. Clark Leasing Corp., 451 F.2d 1291, 1292 (9th Cir. 1971)
(per curiam).
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"[T]he First Amendment protects a public employee's right, in certain
circumstances, to speak as a citizen addressing matters of public concern."18 Whether
speech addresses a matter of "legitimate public concern" is a threshold requirement for
First Amendment protection,19 and what it means has been developed through case
law. A matter is of "public concern" if it is a "matter of political, social or other
concern to the community";20 however, "[w]here the subject of an employee's speech
involves 'matters of personal concern' that are 'mere extensions' of a dispute with a
21
supervisor, such speech is not of public importance."
Under the Alaska Whistleblower Act, on the other hand, protected speech
is defined by statute. The Act prevents a public employer from "discharg[ing],
threaten[ing], or otherwise discriminat[ing] against an employee regarding the
employee's compensation, terms, conditions, location, or privileges of employment
because . . . the employee . . . reports to a public body or is about to report to a public
body a matter of public concern."22 The Act expressly defines a "matter of public
concern" as:
(A) a violation of a state, federal, or municipal law,
regulation, or ordinance;
18 Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).
19 Wickwire v. State, 725 P.2d 695, 699-700 (Alaska 1986) (analyzing
public employee's free speech claim under First Amendment to U.S. Constitution).
20 Id. (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)); see also
Desrochers v. City of San Bernardino , 572 F.3d 703, 710 (9th Cir. 2009) ("To address
a matter of public concern, the content of the [public employees'] speech must involve
'issues about which information is needed or appropriate to enable the members of
society to make informed decisions about the operation of their government.' "
(quoting McKinley v. City of Eloy , 705 F.2d 1110, 1114 (9th Cir. 1983))).
21 Methvin v. Bartholomew, 971 P.2d 151, 155 (Alaska 1998) (quoting
Wickwire, 725 P.2d at 701).
22 AS 39.90.100(a)(1).
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(B) a danger to public health or safety;
(C) gross mismanagement, a substantial waste of funds, or
a clear abuse of authority;
(D) a matter accepted for investigation by the office of the
ombudsman under AS 24.55.100 or 24.55.320; or
(E) interference or any failure to cooperate with an audit or
other matter within the authority of Legislative Budget and
Audit Committee.[23]
The definitional differences are important. For example, an employee's allegation that
her employer violated a state statute or regulation may be deemed under federal law to
be a "mere extension[]" of an employment dispute, of no "political, social or other
24
concern to the community," and thus not entitled to First Amendment protection.
But the Alaska Legislature has determined that a public employer's violation of state
law or "clear abuse of authority" is a "matter of public concern" for purposes of the
Alaska Whistleblower Act if the employee is reporting it, or about to report it, to a
25
public body.
Roseberry made just such allegations in the complaint she filed in this
case:
Plaintiff Emily Roseberry affirms, and states, that the North
Slope Borough School District's Board of Education
violated the Whistleblower Act when it allowed
Superintendent Pauline Harvey to discharge her for
speaking on matters of public concern to Alaska's
Professional Teaching Practices Commission related to
Harvey's violation of Qargi's Charter Contract and Alaska
Statutes.
23 AS 39.90.140(3).
24 See Methvin, 971 P.2d at 155.
25 See AS 39.90.140(3); AS 39.90.100(a)(1).
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Elsewhere in her complaint Roseberry identified a regulation she claimed was violated
and which formed the basis of her several complaints to the Professional Teaching
Practices Commission:
In Roseberry's December 2, 2020 PTPC complaint, she
addressed the fact that Superintendent Harvey had
presented false and malicious statements to the school board
in violation of the teaching code of ethics, as laid out in 20
AAC 10.020(d)(10). In the PTPC complaint Roseberry
specifically referenced her November 18, 2020 and
December 2, 2020 letters, and stated that she feared
retaliation over her letters from Superintendent Harvey.
And the complaint's description of the referenced November 18, 2020 letter also cites
an alleged violation of law: "The public concern at issue was the Superintendent
Harvey's illegal attempt to take over the Qargi Academy, in clear violation of Alaska
Statute § 14.03.255(a)(2)."
"In reviewing a Rule 12(b)(6) dismissal, we liberally construe the
complaint and treat all factual allegations in the complaint as true."26 Roseberry
plainly alleged that she reported to the Alaska Professional Teaching Practices
Commission, a public body,27 violations of "Alaska Statutes" and a regulation, 20
AAC 10.020(d)(10), as well as, at least inferentially, a "clear violation of"
AS 14.03.255(a)(2). These allegations satisfy the statutory requirements for a state-
law whistleblower claim: a report to a public body of "a matter of public concern,"
specifically "a violation of a state . . . law [or] regulation."28 Liberally construed, the
26 Patterson v. Walker, 429 P.3d 829, 831 (Alaska 2018) (quoting Bachner
Co. v. State, 387 P.3d 16, 20 (Alaska 2016)).
27 The Whistleblower Act defines "public body" to include an "agency
of . . . the state." AS 39.90.140(4)(B). The Professional Teaching Practices
Commission was created by statute, AS 14.20.380; its regulations and proceedings are
subject to the Administrative Procedure Act, AS 44.62. AS 14.20.475.
28 AS 39.90.100(a)(1); AS 39.90.140(3)(A).
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complaint's allegations could also satisfy the statutory definition of "matter of public
29
concern" as alleging "gross mismanagement . . . or a clear abuse of authority."
The District contends, however, that we have "repeatedly held . . . that
'matters of public concern' under the First Amendment and the Alaska Whistleblower
Act are the same." To support this assertion the District cites two cases: Thomas v.
State30 and Methvin v. Bartholomew.31 In Thomas an employee filed an ethics
complaint against his employer and was subsequently terminated from his position as
a seafood inspector.32 We considered whether it was error to dismiss Thomas's
whistleblower claim because it "had the same factual basis as the First Amendment
claim that was presented to the jury and decided against him."33 We noted that "[t]he
'protected activity' that Thomas alleged as a necessary element of the whistleblower
claim was the same activity that he alleged as a necessary element of the First
Amendment claim: his report of the director's alleged ethics violation."34 But
although we ruled that his whistleblower claim had been properly dismissed, it was not
because the substance of the ethics complaint was the same in both cases (though it
was), but rather because the jury specifically found that the filing of the ethics
complaint was not "a substantial or motivating factor" in his termination.35 There was
29 AS 39.90.140(3)(C).
30 377 P.3d 939 (Alaska 2016).
31 971 P.2d 151 (Alaska 1998).
32 Thomas, 377 P.3d at 943-45.
33 Id. at 949-50.
34 Id. at 949.
35 Id. An essential element of a Whistleblower Act claim is that the
protected activity had been "a 'substantial' or 'motivating factor' " in the adverse
employment decision. Id. (quoting Okpik v. City of Barrow, 230 P.3d 672, 678 (Alaska
2010)).
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no question raised in Thomas as to whether his ethics complaint involved a "matter of
public concern" for purposes of his First Amendment claim, his whistleblower claim,
or both.
The District's reliance on Methvin is also misplaced. Methvin was
terminated from his state employment after having written to the governor with
complaints about his manager, and he relied on this letter in asserting both First
Amendment and Alaska Whistleblower Act claims.36 In his briefing, however,
Methvin did not argue that the content of his letter to the governor qualified as a "matter
of public concern" as defined by the Whistlebower Act, distinct from a matter of public
concern for First Amendment purposes, and we did not address the statutory standard
in deciding the case. In contrast to Methvin's letter to the governor, Roseberry's
complaints to the Professional Teaching Practices Commission contained specific
allegations that Harvey violated the Academy's Charter Contract and Alaska Statutes,
violations of state law that are statutorily defined as matters of public concern under
the Alaska Whistleblower Act.
Because matters of public concern under the First Amendment and the
Alaska Whistleblower Act are different, Roseberry's whistleblower claim is not barred
by issue preclusion. We therefore reverse the superior court's dismissal of this claim
and remand for further proceedings on its merits.
B. Roseberry's Additional State-Law Claims Are Not Barred By Claim
Preclusion.
The complaint Roseberry filed in state court included not just the Alaska
Whistleblower Act claim that the federal court had dismissed without prejudice, but
also state-law claims she had not alleged in federal court: intentional interference with
contractual relations, negligent supervision, and defamation. The District argued in its
36 Methvin , 971 P.2d at 153-54.
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motion to dismiss that these claims were barred by the res judicata doctrine because
although they were not raised in the federal case, they could have been. The superior
37
court presumably adopted this argument in dismissing the claims.
The res judicata doctrine - otherwise known as claim preclusion -
"bars litigation . . . of any claims that were raised or could have been raised in the prior
action."38 As with issue preclusion, discussed above, "[t]he preclusive effect of a
39
federal-court judgment is determined by federal common law."
For claim preclusion to apply under federal law, there must be "(1) an
40
identity of claims, (2) a final judgment on the merits, and (3) privity between parties."
Both the Ninth Circuit and Alaska's courts follow the principles of claim preclusion of
the Restatement (Second) of Judgments.41 The Restatement provides that generally,
37 See Alaska Wildlife All. v. State, 74 P.3d 201, 206-07 (Alaska 2003).
38 Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir.
2001) (emphasis added) (quoting W. Radio Servs. Co. v. Glickman, 123 F.3d 1189,
1192 (9th Cir.1997)); Windel v. Matanuska-Susitna Borough, 496 P.3d 392, 397
(Alaska 2021) ("If the res judicata doctrine applies, 'it precludes relitigation between
the same parties not only of claims that were raised in the initial proceeding, but also
of those relevant claims that could have been raised then.' " (quoting Patterson v.
Infinity Ins. Co. , 303 P.3d 493, 497 (Alaska 2013))).
39 Taylor v. Sturgell, 553 U.S. 880, 891 (2008).
40 Howard v. City of Coos Bay, 871 F.3d 1032, 1039 (9th Cir. 2017)
(quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Plan. Agency , 322 F.3d 1064,
1077 (9th Cir. 2003)). Under Alaska law, the elements for claim preclusion are the
same. Angleton v. Cox, 238 P.3d 610, 614 (Alaska 2010) ("A judgment is given res
judicata effect by this court when it is (1) a final judgment on the merits, (2) from a
court of competent jurisdiction, (3) in a dispute between the same parties (or their
privies) about the same cause of action.").
41 See, e.g., Mendoza v. Amalgamated Transit Union Int'l , 30 F.4th 879,
887 (9th Cir. 2022) (applying principles outlined in RESTATEMENT (SECOND) OF
JUDGMENTS § 24 (AM. L. INST . 1982)); V.V.V. & Sons Edible Oils Ltd. v. Meenakshi
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when a plaintiff brings a claim under federal law that also has support in a state-law
42
theory, that omitted state-law claim cannot be raised in a subsequent state action.
Federal- and state-law claims are often brought together, and federal
courts can hear both in the exercise of their pendent or supplemental jurisdiction. As
the United States Supreme Court explained in United Mine Workers of America v.
Gibbs, a federal district court with subject matter jurisdiction over a federal claim has
the power to hear and decide state-law claims if the federal-law and state-law claims
"derive from a common nucleus of operative fact" and are "such that [a plaintiff] would
ordinarily be expected to try them all in one judicial proceeding."43 But with that
power comes the "discretion to decline to exercise that power."44 Applying Gibbs a
few decades later in Carnegie-Mellon University v. Cohill, the Court explained that "a
federal court should consider and weigh in each case, and at every stage of the
litigation, the values of judicial economy, convenience, fairness, and comity in order
to decide whether to exercise jurisdiction over a case brought in that court involving
Overseas, LLC, 946 F.3d 542, 545-46 (9th Cir. 2019) (applying principles outlined in
RESTATEMENT (SECOND) OF JUDGMENTS § 26 (AM. L. INST . 1982)); see also
RESTATEMENT (SECOND) OF JUDGMENTS 3.2.D Intro. Note (AM. L. INST . 1982)
(explaining that "merger" and "bar," terms employed by Restatement sections 18-20
and 24-26, are also referred to as "claim preclusion"). Alaska generally follows the
same authority. See, e.g., Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163, 167-
68 (Alaska 1997) (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 25, cmt. c (AM.
L. INST . 1982)); Sykes v. Lawless, 474 P.3d 636, 642-43 (Alaska 2020) (citing
RESTATEMENT (SECOND) OF JUDGMENTS § 24 (AM. L. INST . 1982)).
42 RESTATEMENT (SECOND) OF JUDGMENTS § 25 cmt. e (AM. L. INST .
1982).
43 383 U.S. 715, 725 (1966).
44 Ram Tech. Servs., Inc. v. Koresko, 208 P.3d 950, 954 (Or. 2009) (citing
Gibbs, 383 U.S. at 726).
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pendent state-law claims."45 "When the balance of these factors indicates that a case
properly belongs in state court, as when the federal-law claims have dropped out . . .
in its early stages and only state-law claims remain, the federal court should decline
46
the exercise of jurisdiction by dismissing the case without prejudice."
Congress effectively codified these principles in 1990 with the adoption
of 28 U.S.C. § 1367, providing that federal courts can decline to exercise supplemental
jurisdiction over related state-law claims in four specified circumstances.47 These are
when
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or
claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it
has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.[48]
In interpreting the third of these circumstances, "the federal courts have followed the
general rule set out in Gibbs and Carnegie-Mellon ; . . . when federal district courts
have dismissed before trial the federal claims that gave rise to federal question
jurisdiction, the courts generally have not exercised supplemental jurisdiction over any
45 484 U.S. 343, 350 (1988).
46 Id. The Court in Carnegie-Mellon decided that once a federal court has
determined that it "would be inappropriate" to retain jurisdiction over pendent state
claims, its discretion includes not only dismissing the case without prejudice but also,
as an alternative, remanding the case to state court. Id. at 351, 357.
47 Ram Tech. Servs., Inc., 208 P.3d at 954-55.
48 28 U.S.C. § 1367(c).
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pendent state claims."49 A dismissal of federal claims before trial thus supports an
assumption that the federal court would have declined to hear pendent state claims that
were not actually raised.
This assumption gives rise to an exception to claim-preclusion doctrine,
which is also set out in comment e to the Restatement (Second) of Judgments, § 25.
State-law claims that were not raised in federal court, but that the federal court
probably would have declined to hear, may be raised in a later state-court action:
A given claim may find support in theories or grounds
arising from both state and federal law. When the plaintiff
brings an action on the claim in a court, either state or
federal, in which there is no jurisdictional obstacle to his
advancing both theories or grounds, but he presents only
one of them, and judgment is entered with respect to it, he
may not maintain a second action in which he tenders the
other theory or ground. If however, the court in the first
action would clearly not have had jurisdiction to entertain
the omitted theory or ground (or, having jurisdiction, would
clearly have declined to exercise it as a matter of
discretion), then a second action in a competent court
presenting the omitted theory or ground should be held not
[50]
precluded.
An accompanying illustration posits an antitrust case that goes to trial in federal court,
after which the plaintiffs "commence an action for damages . . . in a state court under
the state antitrust law grounded upon substantially the same business dealings as had
been alleged in the federal action."51 The illustration concludes that "unless it is clear
49 Ram Tech. Servs., Inc., 208 P.3d at 955 (citing 13D CHARLES ALAN
WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER, & RICHARD D. FREER, FEDERAL
PRACTICE AND PROCEDURE § 3567.3, at 428-31 (3d ed. 2008)).
50 RESTATEMENT (SECOND) OF JUDGMENTS § 25 cmt. e (AM. L. INST .
1982).
51 Id. § 25 cmt. e, illus. 10.
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that the federal court would have declined as a matter of discretion to exercise
[supplemental] jurisdiction (for example, because the federal claim, though substantial,
52
was dismissed in advance of trial), the state action is barred."
Other state courts have employed this Restatement exception when
considering the preclusive effect of a dismissed federal action on a subsequent state-
court claim. The Oregon Supreme Court, in Ram Technical Services, Inc. v. Koresko,
aptly described the rationale for allowing a state-law claim to be raised for the first
time in state court following the dismissal of a related federal action: "[W]e see no
reason why claim preclusion should apply when it is clear that the district court would
have declined to exercise supplemental jurisdiction over any state-law claims that
plaintiffs could have asserted."53 The court explained:
Barring plaintiffs from litigating their state law claims in
that circumstance does not advance the principles of judicial
economy that underlie the doctrine of claim preclusion.
Rather, it disserves those principles by denying plaintiffs
[54]
any forum in which to vindicate their state rights.
Similarly, the Idaho Supreme Court in Puckett v. City of Emmett, relying on Gibbs and
Ninth Circuit precedent, held that although the state-law claim at issue was never raised
in federal court, even if it had been "the [federal] court in a proper exercise of discretion
would have dismissed Puckett's state law claim along with his federal question cause
of action."55 The state-law claim was therefore not precluded despite having never
56
been raised in federal court.
52 Id.
53 208 P.3d 950, 956 (Or. 2009).
54 Id.
55 747 P.2d 48, 54-55 (Idaho 1987) (citing United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966)).
56 Id.
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We follow these cases and the Restatement exception. We hold that
where federal claims are dismissed before trial and the record clearly shows that the
federal district court would have declined to exercise supplemental jurisdiction over
omitted state-law claims, the doctrine of claim preclusion does not prevent the plaintiff
from later asserting those state-law claims in state court. The contrary rule would "not
advance the principles of judicial economy that underlie the doctrine of claim
preclusion" and would "deny[] plaintiffs any forum in which to vindicate their state
57
rights."
Employing the rule here, we conclude that the state-law claims Roseberry
failed to raise in her federal action - intentional interference with contractual
relations, negligent supervision, and defamation - were not subject to claim
preclusion. When deciding what the federal district court likely would have done with
those claims, its treatment of the Whistleblower Act claim is instructive. Granting the
motion to dismiss Roseberry's § 1983 federal claims, the court stated explicitly that it
was "declin[ing] supplemental jurisdiction over [Roseberry]'s state law whistleblower
claims." There is nothing in the record to suggest the federal court would have reached
this conclusion and exercised supplemental jurisdiction over different state-law claims,
all of which derived from the same nucleus of operative fact and could be expected to
be litigated together.58 The federal claims were dismissed on a Rule 12(b)(6) motion,
meaning that there had been little factual development and no reason to think that the
court would have felt particularly invested in other state-law claims, had they been
59
brought, and would have wanted to see them through.
57 Ram Tech. Servs., 208 P.3d at 956.
58 See Gibbs, 383 U.S. at 725.
59 See Puckett, 747 P.2d at 54 (noting "main proviso . . . that where
substantial judicial time and resources have been spent on the state claims, jurisdiction
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Because we conclude that the federal district court, having dismissed
Roseberry's federal claims on a motion to dismiss, would likely have declined to
exercise supplemental jurisdiction over any state-law claims, Roseberry was not barred
by the claim-preclusion doctrine from later bringing those claims in state court. We
therefore reverse the superior court's dismissal of Roseberry's state-law claims and
remand for further proceedings on their merits.
CONCLUSION
The superior court's grant of the motion to dismiss is REVERSED and
the case is REMANDED for further proceedings consistent with this opinion.
over them will be retained even if the federal cause of action is dismissed upon
summary judgment").
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