(dissenting):

The question presented by the City’s appeal concerns the preclusive effect of a final Washington state court judgment reinstating Delmus Punton as a Seattle police officer and awarding him back pay because the Seattle Police Department denied Pun-ton due process by firing him without a pretermination hearing. Punton v. City of Seattle Public Safety Commission, 32 Wash.App. 959 , 650 P.2d 1138 (1982), cert. denied, 98 Wash.2d 1014 (1983). More specifically, the question is whether the Washington state court judgment precludes Pun-ton from bringing a separate § 1983 action to recover his damages for pain and suffering and his attorney’s fees.

For reasons that are obscure, the majority disposes of this appeal on the ground that the City did not deny Punton due process. Thus the majority decides the merits of Punton’s constitutional claim without determining the preclusive effect of the contrary state court judgment. 1 I find this peculiar for several reasons: First, concerns for judicial economy and restraint counsel us to address threshold preclusion issues before reaching the merits of a claim, especially a constitutional one. Second, the City has not appealed the district court’s summary judgment ruling in Punton’s favor that the state court judgment bars the City from relitigating the merits of the due process question in this federal action. Third, second-guessing the Washington Court of Appeals’ decision that Punton was denied due process contravenes the principle of “comity between state and federal courts that has been recognized as a bulwark of the federal system.” Allen v. McCurry, 449 U.S. 90, 96 , 101 S.Ct. 411, 415 , 66 L.Ed.2d 308 (1980); cf. Younger v. Harris, 401 U.S. 37, 43-45 , 91 S.Ct. 746, 750-51 , 27 L.Ed.2d 669 (1971).

Rather than revisiting the merits of the due process question in this dissent, 2 I ad *1384 dress the sole question properly presented by the City’s appeal: whether the state court judgment reinstating Punton as a police officer and awarding him back pay bars him from claiming damages for pain and suffering and attorney’s fees in a separate § 1983 action. The claim preclusive effect of a prior state court judgment in a federal § 1983 action is, of course, determined by reference to state preclusion law. Migra v. Warren City School District Board of Education, 465 U.S. 75 , 104 S.Ct. 892 , 79 L.Ed.2d 56 -(1984). 3

At first blush, it would seem that elementary principles of res judicata would bar Punton from bringing a separate action to seek relief over and above the relief he was awarded in his successful action against the City. Punton contends, however, and the district court below agreed, that he is not barred under Washington law from bringing an independent action to recover general damages and fees for his wrongful dismissal after winning reinstatement and back pay. This counterintuitive argument is based upon the limited jurisdiction enjoyed by the Washington superior court when reviewing the Seattle Safety Commission’s decision that Punton had not been wrongfully terminated. Punton claims that the superior court’s jurisdiction was limited to awarding him reinstatement and back pay for two reasons: First, the court could grant him only that relief which the administrative tribunal was authorized to provide, and second, the court could not entertain evidence concerning his claim for damages and fees because that evidence was not contained in the administrative record. Citing Seattle-First National Bank v. Kawachi, 91 Wash.2d 223, 226 , 588 P.2d 725, 727 (1978) for the proposition that under Washington law res judicata precludes relitigation only of “matter[s] *1385 which could and should have been litigated in the [previous] action,” Punton contends he is therefore free to seek general damages and fees in a separate action.

Without the benefit of the thinking of Judges Wright and Goodwin on this issue of Washington law, I am inclined to agree with Punton that the district court’s judgment should be affirmed. First, when a Washington court grants a writ of certiora-ri to review the decision of an administrative tribunal, the court’s jurisdiction is quite limited in scope. “[T]he function of a writ of certiorari is to secure the rendition of ‘the judgment which should have been rendered by the lower tribunal,” Punton, 32 Wash.App. at 970 , 650 P.2d at 1144 (quoting Bringgold, v. Spokane, 19 Wash. 333, 336 , 53 P. 368, 369 (1898)). Because of this limited appellate function “the relief granted under the writ may be only that which is necessary to set aside action in excess of ‘the jurisdiction of [the] tribunal, board or officer, or [is illegal] (sic)’ or to ‘correct any erroneous or void proceeding, or a proceeding not according to the course of the common law.’ ” Id. (quoting Wash. Rev.Code § 7.16.040). See Bringgold v. Spokane, 19 Wash, at 336, 53 P. at 369 (police commission lacked jurisdiction to assess costs against the losing party and therefore superior court similarly lacked jurisdiction to do so upon review pursuant to writ of certiorari). In this case the jurisdiction of the Safety Commission was “confined to the determination of the question of whether [the] removal, suspension, demotion, or discharge was made in good faith for cause.” Seattle Municipal Code § 4.08.100A. Consequently, the superior court could not have awarded damages for pain and suffering or fees. See Punton, 32 Wash.App. at 970, 650 P.2d at 1144 (superior court may not award attorneys’ fees in certiorari proceeding because administrative tribunal lacked authority to award fees).

Moreover, under Washington law a superior court acting pursuant to a writ of certiorari is limited to the administrative record when adjudicating a dispute. It can neither hear witnesses nor receive evidence. Carleton v. Board of Police Pension Fund Commissioners, 115 Wash. 572 , 197 P. 925 (1921). See also Chaussee v. Snohomish County Council, 38 Wash.App. 630, 644-45 , 689 P.2d 1084, 1095 (1984) (superior court had jurisdiction to consider issue of equitable estoppel not considered by administrative tribunal below but properly concluded it could not decide issue because administrative record was inadequate); Bay Industry, Inc. v. Jefferson County, 33 Wash.App. 239, 240-41 , 653 P.2d 1355, 1357 (1982). The record of the administrative proceeding below does not contain the evidence concerning Punton’s alleged pain and suffering that Punton presented to the federal district court in his § 1983 action. Because the superior court was precluded under Washington law from hearing the evidence necessary to assess Punton’s damages, the court could not award him in its certiorari proceeding the relief which he now seeks in his second action.

The City responds that, even if the Washington superior court had no jurisdiction in the certiorari proceeding to award damages and fees, Punton could have presented a claim for damages and fees in an action at law and joined it to his certiorari proceeding. Appellant’s Opening Brief, at 11-12. The City cites no authority for this contention, and I find the argument unpersuasive. It would make little sense for Washington to design a special certiorari proceeding to streamline review of administrative adjudications and then permit plaintiffs to join cumbersome damage actions to their appeal.

The City bases its contention on the Washington Supreme Court’s statement in Standow v. Spokane, 88 Wash.2d 624, 632 , 564 P.2d 1145, 1150 (1977) that “[fjiling an action for damages does not preclude the subsequent issuance of a writ of certiorari in the same cause, upon a proper showing, where relief in the way of damages is inadequate as it is here.” Reliance on this language seems to me to be misplaced. The court in Standow made this statement while addressing a claim that the plaintiff was not entitled to a writ of certiorari because in an earlier action he had sought *1386 damages, and certiorari is only available when there is no adequate remedy at law. See Wash.Rev.Code § 7.16.040. The court apparently intended merely to indicate that a party filing a damages action is not precluded from later seeking a writ of certio-rari if she can demonstrate that the damage remedy is inadequate. The statement seems to support Punton’s position: an action for damages and a certiorari proceeding are two separate actions which can be brought subsequent to one another by litigants in the Washington state court system. Standow does not say that the two actions can be joined in a single proceeding.

It therefore seems to me that, according to Washington res judicata law, Punton would not be barred from bringing a § 1983 action for damages and fees in state court, and hence he is not precluded from doing so in federal court according to Mi-gra.

. Admittedly, the opinion’s organizational and analytical confusion makes it difficult to characterize succinctly the majority’s reasoning. The majority seems initially to engage the res judica-ta issue, citing Migra v. Warren City School District Board of Education, 465 U.S. 75 , 104 S.Ct. 892 , 79 L.Ed.2d 56 (1984) and noting it must focus on Washington state law. Ante, at 1380. Yet the majority then shifts its focus to the merits of Punton’s claim, rephrasing the central question as whether “Punton still had a viable § 1983 claim after he was reinstated in his job with back pay through state court action.” Ante, at 1380. After referencing Supreme Court § 1983 jurisprudence and speculating as to probable congressional intent, the majority concludes that having "obtained the incidental relief afforded by the law that created his job, [Punton is not] now entitled to additional relief in federal court under § 1983....” Ante, at 1380.

The majority’s failure to properly focus on the res judicata issue is further evidenced by the fact that neither of the two cases specifically relied upon by the majority applied Washington state law as the majority concedes is required under Migra. See Clark v. Yosemite Community College District, 785 F.2d 781 (9th Cir.1986) (applying California law) and Cohen v. City of Philadelphia, 736 F.2d 81 (3rd Cir.1984) (applying Pennsylvania law).

. I note, however, that the majority’s analysis is quite troublesome in several respects. First, the majority reaches its conclusion that a post-deprivation remedy constitutes all the process that is due without conducting the balancing test required by Cleveland Board of Educ. v. Loudermill, 470 U.S. 532, 541 , 105 S.Ct. 1487, 1493 , 84 L.Ed.2d 494 (1985) (balancing the private interests in retaining employment, the governmental interest in expeditious terminations, and the risk of erroneous terminations). The Court in Loudermill found some measure of pretermination process required before a public security *1384 guard could be terminated, despite the availability of post-deprivation remedies

Second, while the majority recognizes it must consider "how does the adequacy of the state's choices of remedy bear upon" whether the state's post-deprivation process is fully “adequate” to satisfy due process requirements, ante, at 1381, the majority never engages in such an analysis. A federal court must do far more than offhandedly assert that "a remedy ... col-orably satisfies due process,” ante, at 1383 (emphasis added), to ensure that a state post-deprivation remedy is truly adequate before invoking Parrott v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981), to bar a § 1983 action.

Finally, if the majority means to suggest that Washington provides an adequate post-deprivation remedy simply because Punton could have raised a § 1983 action during or subsequent to his state court proceeding, then despite its protest to the contrary, the majority is indeed imposing an exhaustion of state remedies requirement. Under the majority’s analysis litigants could never bring a § 1983 action in federal court until they first had asserted the same action in state court. This, of course, is not the law. See Patsy v. Board of Regents of Florida, 457 U.S. 496 , 102 S.Ct. 2557 , 73 L.Ed.2d 172 (1982).

. The majority’s statement that “It is highly unlikely that Congress intended to permit state court vindication of state created property interests to set up offensive collateral estoppel for federal claims brought pursuant to § 1983,” ante, at 1382, is misguided for two reasons. First, in Allen v. McCurry, 449 U.S. 90 , 101 S.Ct. 411 , 66 L.Ed.2d 308 (1980), the Supreme Court held that Congress’ clear intent in enacting the federal full faith and credit statute, 28 U.S.C. § 1738 , was that "issues actually litigated in a state-court proceeding are entitled to the same preclusive effect in a subsequent federal § 1983 suit as they enjoy in the courts of the State where the judgment was rendered.” Migra, 465 U.S. at 83 , 104 S.Ct. at 897 . The Court has never suggested that § 1738 incorporates state collateral estoppel law for defensive but not offensive purposes, and such an interpretation would be at odds with the legislative history discussed in McCurry and Migra .

Second, the majority’s concern with offensive collateral estoppel is misplaced because no question of offensive collateral estoppel is before us for decision. The only preclusion argument made by the City on appeal is that Pun-ton’s federal court action is barred by the state court judgment, an affirmative defense based on res judicata. The only party to invoke offensive collateral estoppel in this litigation is Punton. The district court agreed with Punton that the City was precluded under Washington law from relitigating the merits of the due process question once the Washington Court of Appeals decided that issue in Punton’s favor. The City has not appealed this application of offensive collateral estoppel by the district court in granting Punton partial summary judgment. The majority's gratuitous comment casting doubt on Pun-ton’s collateral estoppel argument suggests once again that the majority’s decision is driven, not by Washington res judicata law, but by its antipathy towards the merits of Punton’s due process claim.