Hondo, Inc. v. Sterling

CUDAHY, Circuit Judge,

concurring in the judgment.

I believe the judgments here should be affirmed essentially because in a § 1983 suit there is no requirement for exhaustion of state administrative or judicial remedies. Patsy v. Florida Bd. of Regents, 457 U.S. 496, 500 , 102 S.Ct. 2557, 2559-60 , 73 L.Ed.2d 172 (1982); Monroe v. Pape, 365 U.S. 167, 183 , 81 S.Ct. 473, 481-82 , 5 L.Ed.2d 492 (1961). In Patsy , the Court noted that an exhaustion requirement would raise the very same issues presented here: “Beyond the policy issues that must be resolved in deciding whether to require exhaustion, there are equally difficult questions concerning the design and scope of an exhaustion requirement. These questions include ... what tolling requirements and time limitations should be adopted [and] what is the res'judicata and collateral estoppel effect of particular administrative determinations.” 457 U.S. at 513— 14, 102 S.Ct. at 2566-67 . In connection with the time limitations question, the Court noted that “unless the doctrine that statutes of limitations are not tolled pending exhaustion were overruled) see Board of Regents v. Tomanio, 4 46 U.S. 478 , 100 S.Ct. 1790 , 64 L.Ed.2d 440 (1980), a judicially imposed exhaustion requirement might result in the effective repeal of § 1983.” Id. at 514 n. 17, 102 S.Ct. at 2566 n. 17.

I therefore agree with the conclusion of the majority that the § 1983 causes of action were ripe when County Auditor Sterling denied the respective applications for abatement filed by Hondo and Metro Metals. This is merely the flip side of the no-exhaustion principle. On the other hand, there was no requirement that the § 1983 claim be filed in state court. This does not seem to me to *782 be a case of splitting a cause of action and that issue has certainly not been raised by the parties. Cf. Marrese v. American Academy of Orthopaedic Surgeons, 726 F.2d 1150 (7th Cir.1984).

I also agree with the majority in the matter of tolling. In Board of Regents v. Tomanio, the Supreme Court addressed a statute of limitations very similar to the one before us. 446 U.S. at 481-83 , 100 S.Ct. at 1793-94 . In Tomanio, a litigant had first gone to state court to challenge an action on statutory grounds and then came into federal court only to find that the statute of limitations had expired while she pursued her state remedies. The Court held that we look to the state’s tolling provisions, so long as they are not inconsistent with federal law. Id. at 486, 100 S.Ct. at 1796 . New York did not toll the statute of limitations in that circumstance, and, for comity reasons, the Court would not disturb New York’s “choice” of tolling provisions. Justice Brennan dissented, for the same reasons that arise here: he was concerned that a litigant who had not slept on her claim, but had chosen to try first in state court (perhap? fearing that federal courts might invoke an abstention doctrine if state proceedings were pending) should not be penalized for doing so. Id. at 496, 100 S.Ct. at 1801 . Moreover, he pointed out, New York’s tolling provisions were unlikely to provide relief, since a unitary state system, unlike the dual federal system, would not need to contemplate tolling when a claim is pending in a different court system. Id. at 495, 100 S.Ct. at 1800-01 .

After Tomanio, we look to whether Indiana tolls the statute of limitations here. It seems clear from the cases discussed by the majority that the limitations period would not be tolled. And since Hondo did not raise an equitable tolling argument until too late, we cannot consider that here.

In addition, I think the majority has rightly pointed out — although none of the parties did — that the doctrine of equitable restraint might well foreclose federal court consideration of the § 1983 tax claim in any event. See Fair Assessment in Real Estate Ass’n Inc. v. McNary, 454 U.S. 100 , 102 S.Ct. 177 , 70 L.Ed.2d 271 (1981).