Amicus Curiae Brief — Larry Thompson, Petitioner v. Pagiel Clark, et al.

No. 20-659

In the Supreme Court of the United States

LARRY THOMPSON, PETITIONER

v.

PAGIEL CLARK, RESPONDENT

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR FEDERAL COURTS SCHOLARS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

RAKESH N. KILARU

Counsel of Record

JULIAN JIGGETTS*

WILKINSON STEKLOFF LLP

2001 M St. NW, 10th Floor

Washington, DC 20036

(202) 847-4000

rkilaru@wikinsonstekloff.com

*

Admitted in New York and practicing law in the District of Columbia

pending admission to the D.C. Bar under the supervision of bar members pursuant to D.C. Court of Appeals Rule 49(c)(8).

TABLE OF CONTENTS

Page

Table Of Authorities.............................................................. ii

Interest Of Amici Curiae..................................................... 1

Summary Of Argument ........................................................ 2

Argument ................................................................................ 3

I. Well-Established Doctrines Allow Federal

Litigation Implicating State Proceedings Except

In Narrow Circumstances.............................................. 3

A. Younger Abstention Permits Federal

Litigation Implicating State-Court

Proceedings Once Those Proceedings

Have Concluded......................................................... 4

B. Federal Habeas Corpus Law Similarly

Permits Litigation Involving State-Level

Proceedings. ............................................................... 7

C. The Rooker-Feldman Doctrine Precludes

Collateral Challenges To State Court

Judgments, But Not Litigation Consistent

With Those Judgments. ......................................... 10

II. There Is No Basis For Imposing A Proof-OfInnocence Requirement In §1983 Cases Arising

Out Of Favorably Terminated State-Court

Proceedings. ................................................................... 11

Conclusion ............................................................................ 15

(i)

ii

TABLE OF AUTHORITIES

Cases:

Page

District of Columbia Court of Appeals

et al. v. Feldman,

460 U.S. 462 (1983) .................................................... 10

Dombrowski v. Pfister,

380 U.S. 479 (1965) ...................................................... 5

Doran v. Salem Inn, Inc.,

422 U.S. 922 (1975) ...................................................... 6

Ex parte Royall,

117 U.S. 241 (1886) .................................................... 12

Exxon Mobil Corporation v.

Saudi Basic Industries Corp.,

544 U.S. 280 (2005) .................................................... 10

Fay v. Noia,

372 U.S. 391 (1963) .................................................... 12

Gibson v. Berryhill,

411 U.S. 564 (1973) ...................................................... 5

Harrington v. Richter,

562 U.S. 86 (2011) ........................................................ 9

Hicks v. Miranda,

422 U.S. 332 (1974) ...................................................... 6

House v. Bell,

547 U.S. 508 (2006) ...................................................... 9

Huffman v. Pursue, Ltd.,

420 U.S. 592 (1974) ...................................................... 6

iii

Cases—continued:

Page

INS v. St. Cyr.,

533 U.S. 289 (2001) ...................................................... 7

Lanning v. City of Glens Falls,

908 F.3d 19 (2d Cir. 2018)........................................... 2

Laskar v. Hurd,

972 F.3d 1278 (11th Cir. 2020) ............................. 2, 11

McDonough v. Smith,

139 S. Ct. 2149 (2019) ................................................ 13

Middlesex County Ethics Comm v.

Garden State Bar Ass’n,

457 U.S. 423 (1982) ...................................................... 6

Mitchum v. Foster,

407 U.S. 225 (1972) ...................................................... 4

New Orleans Pub. Serv., Inc. v.

Council of City of New Orleans,

491 U.S. 350 (1989) .................................................. 2, 7

Ohio Civil Rights Comm’n v.

Dayton Christian Schools, Inc.,

477 U.S. 619 (1986) ...................................................... 6

Preiser v. Rodriguez,

411 U.S. 475 (1973) .................................................... 12

Rooker v. Fidelity Trust Co.,

263 U.S. 413 (1923) .................................................... 10

Rose v. Lundy,

455 U.S. 509 (1982) ...................................................... 8

Samuels v. Mackell,

401 U.S. 66 (1971) ........................................................ 4

iv

Cases—continued:

Page

Schlup v. Delo,

513 U.S. 298 (1995) ...................................................... 9

Skinner v. Switzer,

562 U.S. 521 (2011) .................................................... 10

Spring Commc’ns, Inc. v. Jacobs,

571 U.S. 69 (2013) ........................................................ 7

Steffel v. Thompson,

415 U.S. 452 (1974) .................................................. 5, 6

Trainor v. Hernandez,

431 U.S. 434 (1977) ...................................................... 5

Wainwright v. Sykes,

433 U.S. 72 (1977) .................................................... 8, 9

Yarborough v. Alvarado,

541 U.S. 652 (2004) ...................................................... 9

Younger v. Harris,

401 U.S. 37 (1971) ..............................................passim

Statutes:

28 U.S.C. § 2254 ....................................................... 11, 12

28 U.S.C. § 2283 ............................................................... 5

42 U.S.C. § 1983 ........................................................... 5, 6

80 Cong. Ch. 646, June 25, 1948, 62 Stat. 869 ............ 10

Other Authorities:

Gil Seinfeld, 101 Va. L. Rev. Online 14 ......................... 6

v

Other Authorities—continued:

Page

Richard Fallon, Jr. et al.,

Hart & Wechsler’s

The Federal Courts and the Federal System

1168 (7th ed. 2015) ....................................................... 6

In the Supreme Court of the United States

NO. 20-659

LARRY THOMPSON, PETITIONER

v.

PAGIEL CLARK, RESPONDENT

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR FEDERAL COURTS SCHOLARS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

∗

INTEREST OF AMICI CURIAE

Amici curiae are legal scholars who study federal jurisdiction, federal procedure, and constitutional law, and

who have taught and written on the interplay between

proceedings in state and federal courts.

Erwin Chemerinsky is the Dean and Jesse H. Choper

Distinguished Professor of Law at the University of California, Berkeley School of Law.

Leah Litman is an Assistant Professor of Law at the

University of Michigan Law School.

Suzanna Sherry is the Herman O. Loewenstein Chair

∗

Pursuant to Rule 37.6, amici curiae affirm that no counsel for a

party authored this brief in whole or in part and that no person other

than amici or their counsel has made any monetary contributions intended to fund the preparation or submission of this brief. All parties

have provided consent for the filing of this amicus brief.

(1)

2

in Law at Vanderbilt Law School.

Stephen Vladeck holds the Charles Alan Wright Chair

in Federal Courts at the University of Texas.

SUMMARY OF ARGUMENT

In New Orleans Public Service, Inc. v. New Orleans,

Justice Scalia observed that “only exceptional circumstances justify a federal court’s refusal to decide a case in

deference to the states.” 491 U.S. 350, 368 (1989)

(“NOPSI”). The lower court’s parsimonious construction

of the favorable-termination requirement stands at odds

with that principle and the established framework for federal-court adjudications involving state proceedings.

Federal courts have long been permitted to hear cases

that may implicate state proceedings unless doing so

would interfere with ongoing state proceedings or secondguess the way a state court has decided an issue. It is perfectly consistent with that framework to allow a plaintiff

to bring a 42 U.S.C. § 1983 claim arising out of a state

criminal proceeding that has “formally ended in a manner

not inconsistent with his innocence,” Laskar v. Hurd, 972

F.3d 1278, 1293 (11th Cir. 2020). There is nothing to be

gained, and much to be lost, by imposing the additional

requirement that the state-court proceeding have “ended

in a manner that affirmatively indicates” the plaintiff’s innocence, as the court below wrongly held. Lanning v.

City of Glens Falls, 908 F.3d 19, 22 (2d Cir. 2018).

A. Federal litigation implicating state-court proceedings can arise in a variety of different contexts, and courts

have developed established rules to address those situations. Among them are Younger abstention (addressing

parallel litigation in state and federal court), federal ha-

3

beas law (involving federal-court review of state convictions), and the Rooker-Feldman doctrine (precluding collateral federal attacks on state judgments). The salient

common threads between these doctrines are that they

seek only to avoid interference with ongoing state-court

proceedings and improper second-guessing of state-court

judgments.

B. Petitioner’s brief persuasively explains how the

Second Circuit’s proof-of-innocence rule would detach favorable-termination from the rule developed over centuries of common low. That rule would also mark a stark

departure from well-established principles of federal

court jurisdiction. There is accordingly no justification—

and certainly not one based in principles of comity or federalism—for requiring a plaintiff to affirmatively establish his innocence to challenge a violation of his civil rights

in connection with a now-defunct state proceeding.

ARGUMENT

I.

WELL-ESTABLISHED DOCTRINES ALLOW FEDERAL LITIGATION IMPLICATING STATE PROCEEDINGS EXCEPT IN NARROW CIRCUMSTANCES.

Federal courts have established a series of prudential

doctrines to avoid conflicts with state proceedings. The

metes and bounds of these doctrines (Younger abstention,

federal habeas corpus, and the Rooker-Feldman doctrine)

may be complicated, but the animating principles are

straightforward: Abstention or deference is warranted

only where there is either an ongoing proceeding in state

court or where a federal court challenge would improperly

contradict a state court judgment.

4

A. Younger Permits Federal Litigation Implicating

State-Court Proceedings Once Those Proceedings

Have Concluded.

Congress most clearly spoke to the issue of parallel

federal-state litigation in the Anti-Injunction Act, 28

U.S.C. § 2283. That statute generally bars federal courts

from enjoining ongoing state court proceedings. See id.

(“A court of the United States may not grant an injunction

to stay proceedings in a State court except as expressly

authorized by Act of Congress, or where necessary in aid

of its jurisdiction, or to protect or effectuate its judgments.”). There is no similar federal statutory prohibition

involving state proceedings that have since concluded.

Congress has also carved out exceptions to the Anti-Injunction Act that are more permissive of federal litigation.

Most relevant here, in Mitchum v. Foster, this Court held

that 42 U.S.C. § 1983 “expressly authorized” federal

courts to issue injunctions against state court proceedings, and that § 1983 suits accordingly do not fall within

the scope of the Anti-Injunction Act’s general prohibition.

407 U.S. 225, 242–43 (1972).

This Court’s decision in Younger v. Harris provides

the relevant abstention rule for § 1983 cases. That rule is

largely similar to the one Congress established in the

AIA. Younger held that federal courts generally cannot

enjoin ongoing state criminal prosecutions. 401 U.S. at

53–54; see also Samuels v. Mackell, 401 U.S. 66, 73 (1971)

(same holding for claims for declaratory relief). “Since

the beginning of this country’s history,” Younger explained, there has been a “longstanding public policy

against federal court interference with state court proceedings.” 401 U.S. at 43. This rule derives not just from

the desire to “prevent erosion of the role of the jury and

avoid a duplication of legal proceedings,” id. at 44, but also

5

to honor the principle of “ ‘comity’, that is, a proper respect for state functions.” Where “a proceeding [is] already pending in the state court,” a litigant has “an

opportunity to raise [their] constitutional claims” there.

Id. at 49. In light of these considerations, “the normal

thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions.” Id. at 45 (emphasis added).

Younger accordingly establishes a simple rule: Federal courts should abstain from challenges to ongoing

state criminal proceedings in order to avoid duplicative litigation and appearing to supersede the judgment of the

state court. See Gibson v. Berryhill, 411 U.S. 564, 577

(1973) (“Younger v. Harris contemplates the outright dismissal of the federal suit, and the presentation of all

claims, both state and federal, to the state courts.”).

Younger is also subject to exceptions that narrow its

prohibitive effect. Specifically, a federal court can entertain litigation where a state-court prosecution is brought

in bad faith or to harass an individual; where the state

criminal prosecution is patently unconstitutional; or

where the state forum is inadequate. Younger, 401 U.S.

at 49, 53; Dombrowski v. Pfister, 380 U.S. 479 (1965);

Trainor v. Hernandez, 431 U.S. 434, 446–47 (1977) (declining to allow suit to proceed on the ground that state

law was patently unconstitutional).

Moreover, Younger has no role to play when there is

no case pending in state court. Steffel v. Thompson held

that a federal court could enjoin state court proceedings

where a litigant sought to enjoin a possible, future prosecution. 415 U.S. 452 (1974). That was so even though the

police officers in Steffel had repeatedly arrested the plaintiff for allegedly unlawful conduct and threatened him

with arrests in the future. 415 U.S. at 455. See also Doran

6

v. Salem Inn, Inc., 422 U.S. 922, 930 (1975) (allowing a

case seeking to enjoin state criminal proceedings to proceed where no state criminal proceedings were yet ongoing). Absent a pending case, this Court held, the

rationales for Younger are absent: “[F]ederal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can

federal intervention, in that circumstance, be interpreted

as reflecting negatively upon the state court’s ability to

1

enforce constitutional principles.” Steffel, 415 U.S. at 462.

Extensions of Younger to state administrative proceedings have not broadened the doctrine’s reach. See

Huffman v. Pursue, Ltd., 420 U.S. 592 (1974) (applying

the holding of Younger to a narrow category of civil enforcement proceedings). In two cases, the Court extended

Younger to “state administrative proceedings of a judicial

nature.” Richard Fallon, Jr. et al., Hart & Wechsler’s The

Federal Courts and the Federal System 1168 (7th ed.

2015) (citing Middlesex County Ethics Comm v. Garden

State Bar Ass’n, 457 U.S. 423 (1982) and Ohio Civil Rights

Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619

(1986)); see also Gil Seinfeld, 101 Va. L. Rev. Online 14, 20

(“[O]nly proceedings of a certain sort—those presided

over by an impartial state actor—merit deference under

1

The ordering of the proceedings does not matter—abstention is

appropriate even if a federal proceeding was pending before the state

proceeding began, so long as state proceedings were instituted before

a “proceeding[] of substance on the merits” in federal courts, Hicks

v. Miranda, 422 U.S. 332 (1974); Doran, 422 U.S. at 922). The relevant point is that a federal court should defer to the state court only

when parallel proceedings are pending.

7

the Younger doctrine.”). But even there, the Court concluded that abstention is warranted only in the “exceptional” circumstances where there are ongoing “civil

proceedings involving certain orders that are uniquely in

furtherance of the state courts’ ability to perform their judicial functions.” Spring Commc’ns, Inc. v. Jacobs, 571

2

U.S. 69, 73 (2013).

The touchstone of the Younger analysis is thus

whether or not a state adjudication is ongoing—nothing

more. A broader “abstention requirement would make a

mockery of the rule that only exceptional circumstances

justify a federal court’s refusal to decide a case in deference to the States.” NOPSI, 491 U.S. at 368.

B. Federal Habeas Corpus Law Similarly Permits

Litigation Involving State-Level Proceedings.

The same principles animate federal habeas corpus—

the writ that is used to test the legality of detentions. See

INS v. St. Cyr., 533 U.S. 289, 300–02, 301 n.14 (2001). Exhaustion rules, AEDPA’s relitigation limitations, and the

procedural default doctrine all ensure that federal courts

do not interfere with ongoing state criminal proceedings

or improperly second-guess the final judgments resulting

from those proceedings. But provided these hurdles are

cleared, federal courts are open to hear challenges to

state-court proceedings.

1. The statutory and doctrinal rules relating to ex-

2

Confirming its narrow scope, Younger abstention does not apply

outside the judicial context, i.e., where there is “a state judicial proceeding reviewing legislative or executive action,” New Orleans Pub.

Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 367 (1989).

8

haustion ensure that federal habeas review of state criminal convictions does not occur until after state proceedings have completed. Ex parte Royall, which first

adopted the exhaustion requirement, explained that the

requirement is rooted in concerns of federal-state comity—that state courts are presumably as competent as

federal courts to entertain legal challenges. 117 U.S. 241,

251–53 (1886). Congress codified the exhaustion requirement in 1948. See Act of June 25, 1948, § 2254, 62 Stat. 869,

967.

Today, that requirement reads as follows: “An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall

not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State,”

subject to limited exceptions. 28 U.S.C. § 2254(b)(1)(A).

And “[a]n applicant shall not be deemed to have exhausted

the remedies available in the courts of the State, within

the meaning of this section, if he has the right under the

law of the State to raise, by any available procedure, the

question presented.” 28 U.S.C. § 2254(c).

Various doctrinal rules reinforce these requirements.

Wainwright v. Sykes, 433 U.S. 72 (1977), established a

presumption against habeas review of claims that were

not first presented to state courts. And Rose v. Lundy

held that petitions presenting both exhausted and unexhausted claims (mixed petitions) should be dismissed. 455

U.S. 509, 522 (1982). These cases “provid[e] a simple and

clear instruction to potential litigants: before you bring

any claims to federal court, be sure that you first have

taken each one to state court.” Rose, 455 U.S. at 520.

2. The procedural default doctrine effectuates similar

goals—preserving federal-state comity by limiting the

9

circumstances under which litigants can collaterally attack state court judgments. It is in effect the back-end

enforcement mechanism for the exhaustion requirement

just described. The doctrine generally bars federal habeas review of claims that were not raised, but could have

been raised, during state court proceedings. See Harrington v. Richter, 562 U.S. 86, 103 (2011). Federal habeas courts will not hear procedurally defaulted claims

except in narrow circumstances: a showing of cause and

prejudice, Wainwright v. Sykes, 433 U.S. 72, 82–84 (1977),

or actual innocence, House v. Bell, 547 U.S. 508, 536–37

(2006); Schlup v. Delo, 513 U.S. 298, 327 (1995).

3. AEDPA’s limitations likewise safeguard state criminal proceedings on the back end by ensuring that state

criminal judgments are not open to collateral attack outside of carefully crafted limitations.

Under AEDPA, “an application for a writ of habeas

corpus on behalf of a person in custody pursuant to the

judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in

State court proceedings” unless the adjudication “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal

law” or “resulted in a decision that was based on an unreasonable determination of the facts.” 28 U.S.C.

§ 2254(d). This provision precludes federal habeas relief

so long as “fairminded jurists could disagree” about the

correctness of the state court’s decision. Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004). The reasons for this

approach are, like Younger abstention and the rules governing exhaustion, rooted in federal-state comity. See

Harrington, 562 U.S. at 103–04.

The takeaway principle from these doctrines is similar

10

to Younger: Federal courts are open to litigation involving state-court judgments, provided that state-court litigation is not ongoing and the federal litigation would not

improperly second-guess the state court’s determination.

C. The Rooker-Feldman Precludes Collateral Challenges

To State Court Judgments, But Not Litigation

Consistent With Those Judgments.

The narrow reach of the Rooker-Feldman doctrine

confirms that federal courts are open to a broad array of

litigation involving state-court proceedings. The doctrine

counsels dismissal in a “narrow ground” of cases filed in

federal court. Skinner v. Switzer, 562 U.S. 521, 531–32

(2011). Specifically, once a state court issues a judgment,

federal courts must avoid entertaining “cases brought by

state-court losers complaining of injuries caused by statecourt judgments rendered before the district court proceedings commenced and inviting district court review

and rejection of those judgments.” Exxon Mobil Corporation v. Saudi Basic Industries Corp., 544 U.S. 280, 284

(2005) (emphasis added). In Rooker v. Fidelity Trust Co.,

263 U.S. 413 (1923), “the parties defeated in state

court . . . asked the federal court to declare” the adverse

state-court judgment “null and void.” Exxon, 544 U.S. at

284. And in Feldman, two plaintiffs filed suit in federal

court challenging the District of Columbia Court of Appeals’ decision not to waive the bar admission requirement that individuals attend an accredited law school. 460

U.S. 462 (1983). Both challenges were rejected.

But the Rooker-Feldman doctrine “is not triggered

simply by the entry of judgment in state court.” Exxon,

544 U.S. at 292. As relevant here, the doctrine does not

prevent litigation by the state-court winner. A state court

judgment may have claim- or issue-preclusive effects, but

11

no preclusion doctrine requires automatic dismissal of the

case. See Exxon, 544 U.S. at 291–93.

* * *

Younger abstention, federal habeas law, and the

Rooker-Feldman doctrine all reflect an overarching set of

principles governing federal litigation implicating statecourt proceedings. The first principle is that, once state

criminal proceedings are initiated, federal courts will not

interfere and will allow them to conclude. The second

principle is that, once state criminal proceedings are completed, state criminal judgments are not subject to being

second-guessed through collateral litigation by the loser,

except in narrow circumstances. Otherwise, the federal

courts remain open.

II. THERE IS NO BASIS FOR IMPOSING A PROOF-OF-INNOCENCE REQUIREMENT IN §1983 CASES ARISING

OUT OF FAVORABLY TERMINATED STATE-COURT

PROCEEDINGS.

Petitioner’s and the Eleventh Circuit’s understanding

of the favorable-termination rule fits comfortably beside

the other doctrines just described. The rule itself is easily

stated: A plaintiff can bring a § 1983 claim for unlawful

seizure arising out of a state criminal proceeding that has

terminated in a manner “not inconsistent with his innocence.” Laskar, 972 F.3d at 1293. Because that rule mandates that the state proceeding have terminated, it

addresses the concern about parallel state-federal litigation underlying Younger and several federal habeas doctrines.

And because that rule requires that the

termination be “not inconsistent with . . . innocence,” the

federal proceeding does not involve improper secondguessing of a state-court judgment. Id. On the contrary,

12

the federal proceeding is consistent with the judgment because the state courts have agreed there is no basis for

continued criminal prosecution.

The cases that established the favorable-termination

rule focused on the same underlying considerations. In

Preiser v. Rodriguez, this Court held that an incarcerated

person seeking an injunction to restore good time credits

must proceed under the federal habeas corpus statute rather than § 1983. 411 U.S. 475 (1973). The Court’s holding

largely focused on the interaction between those two statutes. “Congress clearly required exhaustion of adequate

state remedies as a condition precedent to the invocation

of federal judicial relief under [habeas] laws.” Id. at 489.

“It would wholly frustrate explicit congressional intent”

were the prospective plaintiffs able to “evade this requirement by the simple expedient of putting a different label

on their pleadings.” Id. at 489-90.

But in reaching that conclusion, the Court also highlighted the parity and comity principles that underlie both

federal habeas and Younger abstention. 411 U.S. at 490–

92. For example, citing Fay v. Noia, 372 U.S. 391 (1963),

a procedural default case, and Ex parte Royall, the Court

explained that its ruling would “avoid the unnecessary

friction . . . that would result if a lower federal court upset

a state court conviction without first giving the state court

system an opportunity to correct its own constitutional errors.” Preiser, 411 U.S. at 490.

The Court relied on similar principles in foreclosing

§ 1983 damages claims challenging a state conviction. See

Heck v. Humphrey, 512 U.S. 477 (1994). The prospective

plaintiff in Heck sought damages, arguing that due process violations in his state criminal proceedings had resulted in his wrongful conviction. Id. at 478–79. Heck

concluded that the plaintiff’s claim was analogous to a

13

common-law claim for malicious prosecution, which required a plaintiff to prove that criminal proceedings had

resulted in a favorable-termination. Id. at 484. Accordingly, Heck held that a § 1983 claim is cognizable only if a

favorable-termination occurs. 512 U.S. at 489–90. In

reaching that holding, Heck relied on the need to avoid

duplicative litigation that second-guesses state-court

judgments, which animates both federal habeas law and

Rooker-Feldman. Indeed, Heck specifically cited Rooker

as supporting “the hoary principle that civil tort actions

are not appropriate vehicles for challenging the validity of

outstanding criminal judgments.” 512 U.S. at 486.

More recently, in McDonough v. Smith, this Court reaffirmed that the central principles underlying the prohibitions on federal litigation implicating state-court

proceedings are the need to avoid duplicative litigation

and disrespect for state-court decisions. 139 S. Ct. 2149.

McDonough held that a §1983 claim for fabrication of evidence does not accrue until ongoing criminal proceedings

against the state court defendant (and §1983 plaintiff) terminated in her favor. Id. at 2154–55. McDonough reasoned that the most natural common-law analogy for the

§1983 plaintiff’s fabrication claim was the tort of malicious

prosecution, which included a favorable-termination requirement. But McDonough also based its conclusion on

“the practical considerations that have previously led this

Court to defer accrual of claims that would otherwise constitute an untenable collateral attack on a criminal judgment.” 139 S. Ct. at 2155. Were the fabrication of evidence

claim to accrue before favorable-termination, the result

would be duplicative litigation in multiple courts that

would “run counter to core principles of federalism, comity, consistency, and judicial economy.” 139 S. Ct. at 2158

(alluding to “the problems of two-track litigation”).

14

Those “core principles” are well-served by Petitioner’s

rule. When state court proceedings end in a way that is

not inconsistent with a prospective plaintiff’s innocence,

there is by definition no ongoing state-court proceeding.

Moreover, in such circumstances, the plaintiff is not collaterally attacking any state court decision—on the contrary, if the plaintiff were to succeed on her §1983 claim,

that would imply the validity of the state court decision

that accepted the state prosecutor’s dismissal of charges.

Adding a proof-of-innocence requirement does not

serve those “core principles” in any greater way. And as

Petitioner has persuasively explained, that rule would

come at the expense of both the common law and common

sense. Among other perverse outcomes, requiring proof

of innocence would require a potential plaintiff to oppose

dismissal of baseless charges in order to secure a clearer

indication of her innocence. No principle of federalism or

comity justifies such an unconscionable result.

15

CONCLUSION

For the foregoing reasons, the decision below should

be reversed.

Respectfully submitted.

RAKESH N. KILARU

Counsel of Record

*

JULIAN A. JIGGETTS

WILKINSON STEKLOFF LLP

2001 M St. NW, 10th Floor

Washington, DC 20036

(202) 847-4000

rkilaru@wilkinsonstekloff.com

JUNE 11, 2021

*

Admitted in New York and practicing law in the District of Columbia

pending admission to the D.C. Bar under the supervision of bar members pursuant to D.C. Court of Appeals Rule 49(c)(8).