BULLOCH v. PEARSON No. 84-1830.
768 F.2d 1191 (1985)
David BULLOCH, McRae N. Bulloch, Fern Bulloch, Douglas Corry, A.E. Seegmiller, Myron Higbee, Nelson Webster, Lillian W. Clark, for herself and as representative of the estate of Douglas C. Clark, deceased, Lambeth Brothers Livestock a partnership, T. Randall Adams, and Dee Evans, Plaintiffs-Appellants, v. Paul B. PEARSON, Bernard Trum, Gordon Dunning, Leo F. Bustad, General Electric Corporation, John J. Finn, Charles F. Eason, Don Fowler, H.A. Kornberg, John H. Rust, Utah State Board of Health, Monroe Holmes, George Spendlove and John Does I Through XX, Defendants-Appellees.
United States Court of Appeals, Tenth Circuit.
July 26, 1985.
Dan S. Bushnell, Salt Lake City, Utah (M. Karlynn Hinman and James J. Cassity, Salt Lake City, Utah, with him on the briefs), of Kirton, McConkie & Bushnell, Salt Lake City, Utah, for plaintiffs-appellants.
Marc Johnson, Dept. of Justice, Washington, D.C. (Richard K. Willard, Acting Asst. Atty. Gen., Robert S. Greenspan, Dept. of Justice, Washington, D.C., and Brent D. Ward, U.S. Atty., Salt Lake City, Utah, with him on the briefs), for defendants-appellees.
Before BARRETT, McWILLIAMS and LOGAN, Circuit Judges.
BARRETT, Circuit Judge.
The dispositive issue in this appeal is whether the plaintiffs are precluded from litigating the substantive issues underlying their constitutional claims following this Court's decision in Bulloch v. United States, 763 F.2d 1115 (10th Cir.1985) (en banc) (Bulloch II).
The present case, which may be termed Bulloch III, arises from the plaintiffs' efforts
The present suit is a Bivens-type action for damages against the government attorneys who prepared and tried Bulloch I and certain government employees who aided in the preparation and trial of Bulloch I.
Collateral estoppel, or, in modern phraseology, issue preclusion, refers to the principle that "a litigant in one lawsuit may not, in a later lawsuit, assert the contrary of issues actually decided in and necessary to the judgment of the first suit." Slayton v. Willingham, 726 F.2d 631, 633 (10th Cir.1984). See also 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4416, at 136 (1981) (hereinafter "Wright and Miller"). The doctrine "has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation." Parklane Hosiery v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979).
In the present case, the plaintiffs concede that the allegations they are now pressing against the government defendants in their individual capacities are identical
We agree with the plaintiffs insofar as they state the general rule that failure to carry a high standard of proof does not preclude a subsequent attempt to satisfy a lower standard. Our agreement does not dispose of the collateral estoppel issue, however. There is no doubt that the ultimate claim in the present case — denial of due process — is different from the primary claim in Bulloch II — fraud on the court. By the plaintiffs' own pleadings in the present case, however, in order for them to prevail on their due process claim they must establish that the government defendants' actions and omissions constituted fraud on the court:
Plaintiffs' Amended Complaint, R. Vol. I, at 150.
WE AFFIRM the District Court's dismissal of Plaintiffs'-Appellants' action.
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