RES JUDICATA Nilsen v. City of Moss Point, Mississippi, 701 F.2d 556 423 U.S. 908 96 S.Ct. 210 46 L.Ed.2d 137 423 U.S. 1026 96 S.Ct. 470 46 L.Ed.2d 400 42 U.S.C. § 1983 Stevenson v. International Paper Co., 516 F.2d 103 108 Nilsen, 701 F.2d at 559 Nilsen,Stevenson v. International Paper Co., 516 F.2d 103 109 Kemp v. Birmingham News Co., 608 F.2d 1049 1052 res judicata,could have beenAllen v. McCurry, 449 U.S. 90 94 101 S.Ct. 411 414 66 L.Ed.2d 308 Nilsen, 701 F.2d at 559-560 NilsenUnited Home Rentals v. Texas Real Estate Commission, 716 F.2d 324 329 Ocean Drilling Exploration v. Mont BoatRental, 799 F.2d 213 Ocean Drilling, 799 F.2d at 217 APPLICATION
Yet we rarely do so, for it is a "drastic step" to "invok[e] res judicata for the first time on appeal and revers[e] the district court below as a consequence." United Home Rentals, Inc. v. Tex. Real Est. Comm'n, 716 F.2d 324, 330 (5th Cir. 1983).
An "as applied" constitutional challenge to a statute generally involves two questions: 1) is the government's interpretation of the statute correct? and 2) does that interpretation violate the federal constitution? See United Home Rentals, Inc. v. Texas Real Est. Comm'n, 716 F.2d 324, 332 (5th Cir. 1983). With respect to the first inquiry, the Attorney General's position in this case is that any interpretation of the Compulsory Vaccination Law from which an official were to conclude that vaccinations are required for students to attend schools in the State, without the possibility of a religious exemption, is an incorrect interpretation of Mississippi law because such an interpretation does not take into account MRFRA, which the Attorney General represents affords such an exemption.
Federal courts follow the "transactional test" enunciated in the Restatement (Second) of Judgments to determine whether two suits involve the same claim for res judicata application. Jackson v. United States Postal Serv., 799 F.2d 1018, 1021 (5th Cir. 1986); United Home Rentals, Inc. v. Texas Real Estate Comm'n, 716 F.2d 324, 328 (5th Cir. 1983); Hayes v. Pin Oak Petroleum, Inc., 798 S.W.2d 668, 672 (Tex.App. — Austin 1990, writ denied) (applying federal law). The transactional test provides that:
Although the district court did not explicitly apply claim preclusion (res judicata) or issue preclusion (collateral estoppel), and U.S. Bank did not plead any preclusion doctrine, this court "may raise the issue of res judicata sua sponte as a means to affirm the district court decision." Russell v. Sun-America Sec., Inc., 962 F.2d 1169, 1172 (5th Cir. 1992) (internal quotation marks and citation omitted); see United Home Rentals, Inc. v. Tex. Real Estate Comm'n, 716 F.2d 324, 330 (5th Cir. 1983); Am. Furniture Co. v. Int'l Accommodations Supply, 721 F.2d 478, 482 (5th Cir. Unit A Mar. 1981). Issue preclusion or collateral estoppel provides that "if a litigant has fully and fairly litigated an issue and lost, then third parties unrelated to the original action can bar the litigant from re-litigating that same issue in a subsequent suit."
Nilsen actually established our formal adoption of the transactional test. See Nilsen, 701 F.2d at 559-60 n.4 ("[T]he transactional test . . . represents the modern view and . . . we prefer [it] to our earlier writings."); see also United Home Rentals, Inc. v. Texas Real Estate Comm'n, 716 F.2d 324, 328 (5th Cir. 1983) ("This Circuit has definitively established as the standard to be applied in determining whether the substance of the two action is the same for res judicata purposes the transactional test of a 'claim' enunciated in the Second Restatement of Judgments.") (citing Nilsen, 701 F.2d at 559-60 n.4); Houston Prof'l Towing Ass'n v. City of Houston, 812 F.3d 443, 447 (5th Cir. 2016) ("We apply a transactional test to determine 'whether two suits involve the same claim or cause of action.' The transactional test focuses on whether the two cases 'are based on the same nucleus of operative facts.'") (cleaned up).
Although usually an affirmative defense, collateral estoppel may be raised sua sponte by the district court, particularly if both actions were brought in courts of the same district, as is the case here.United HomeRentals, Inc. v. Tex. Real Estate Comm'n, 716 F.2d 324, 330 (5th Cir. 1983) (recognizing that "in the interest of judicial economy, res judicata may properly be raised by a district court sua sponte, particularly where both actions are brought in the courts of the same district"); see also Meador v. McFaddin, 172 F.3d 869, 1999 WL 129938, at *1 (5th Cir. 1999) (unpublished) ("Although usually an affirmative defense, collateral estoppel may be raised sua sponte by the district court if both actions were brought in courts of the same district."). As mentioned above, this court reviews the district court's application of collateral estoppel de novo.
LAN/STV has not argued issue preclusion, and we decline to raise it sua sponte. See United Home Rentals, Inc. v. Texas Real Estate Comm'n, 716 F.2d 324, 331 (5th Cir. 1983) (declining to raise collateral estoppel sua sponte). II
Thus, the delay that is particularly pernicious in First Amendment cases was not an issue. The only other First Amendment case in which a circuit court has found that Pullman abstention was appropriate is United Home Rentals v. Texas Real Estate Commission, 716 F.2d 324 (5th Cir. 1983). In contrast to the case at hand, United Home Rentals involved a commercial speech question, regarding whether the government could require that employees of home rental agencies have real estate licenses.
The first exception allows "[d]ismissal by the court sua sponte on res judicata grounds . . . in the interest of judicial economy where both actions were brought before the same court." Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980); accord United Home Rentals, Inc. v. Tex. Real Estate Comm'n, 716 F.2d 324, 330 (5th Cir. 1983).