Amicus Curiae Brief — Nancy Williams, et al., Petitioners v. Greg Reed, Secretary, Alabama Department of Workforce

No. 23-191

In the

Supreme Court of the United States

NANCY WILLIAMS, ET AL.,

Petitioners,

v.

FITZGERALD WASHINGTON,

ALABAMA SECRETARY OF LABOR,

Respondent.

On Writ of Certiorari to the

Supreme Court of Alabama

BRIEF OF AMICUS CURIAE THE CHAMBER

OF COMMERCE OF THE UNITED STATES

IN SUPPORT OF PETITIONERS

BRIAN A. KULP

DECHERT LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

JONATHAN D. URICK

JORDAN L. VON BOKERN

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

STEVEN A. ENGEL

Counsel of Record

MICHAEL H. MCGINLEY

JUSTIN W. AIMONETTI

DECHERT LLP

1900 K Street, NW

Washington, DC 20006

(202) 261-3369

steven.engel@dechert.com

Counsel for Amicus Curiae

April 18, 2024

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF AMICUS CURIAE........................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................... 2

ARGUMENT .............................................................. 4

I. Plaintiffs Need Not Exhaust Administrative

Remedies Before Suing Under Section 1983 ...... 4

A. Congress Did Not Require Exhaustion For

Claims Arising Under Section 1983 .............. 4

B. States Cannot Undermine The Federal

Right Conferred By Section 1983 Through

An Exhaustion Requirement ......................... 6

II. State Exhaustion Requirements Significantly

Impede The Vindication Of Federal Rights ...... 11

A. State Exhaustion Requirements Will Lead

To Burdensome Duplicative Litigation ....... 12

B. State Exhaustion Requirements Create

Additional Concerns ..................................... 16

CONCLUSION ........................................................ 19

ii

TABLE OF AUTHORITIES

Cases

Allen v. McCurry,

449 U.S. 90 (1980).................................................. 15

Allen v. Milligan,

599 U.S. 1 (2023)...................................................... 6

Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320 (2015).................................................. 7

Barry v. Barchi,

443 U.S. 55 (1979).................................................... 5

Brown v. W. Ry. Co. of Ala.,

338 U.S. 294 (1949).................................................. 6

Carter v. Stanton,

405 U.S. 669 (1972).................................................. 5

Chamber of Commerce of the United States of

America v. Bonta,

62 F.4th 473 (9th Cir. 2023) ................................... 11

Crosby v. Nat’l Foreign Trade Council,

530 U.S. 363 (2000)................................................ 10

Damico v. California,

389 U.S. 416 (1967).................................................. 5

Felder v. Casey,

487 U.S. 131 (1988).................................... 2, 3, 6–10

Free v. Bland,

369 U.S. 663 (1962).................................................. 7

Gibson v. Berryhill,

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

iii

Hawthorne v. Vill. of Olympia Fields,

790 N.E.2d 832 (Ill. 2003)...................................... 15

Haywood v. Drown,

556 U.S. 729 (2009)...................................... 2, 3, 6, 9

Hensley v. Eckerhart,

461 U.S. 424 (1983)................................................ 14

Houghton v. Shafer,

392 U.S. 639 (1968).................................................. 5

Howlett ex rel. Howlett v. Rose,

496 U.S. 356 (1990).............................................. 2, 9

Johnson v. Fankell,

520 U.S. 911 (1997) ............................................ 9, 10

Jones v. Vill. of Chagrin Falls,

674 N.E.2d 1388 (Ohio 1997) ................................ 15

King v. Smith,

392 U.S. 309 (1968).................................................. 5

Knick v. Twp. of Scott,

588 U.S. 180 (2019).................................................. 6

Kremer v. Chem. Constr. Corp.,

456 U.S. 461 (1982)................................................ 15

Maine v. Thiboutot,

448 U.S. 1 (1980).............................................. 14, 16

McNeese v. Bd. of Educ. for Cmty. Unit Sch.

Dist. 187, 373 U.S. 668 (1963) ............................. 4, 5

Migra v. Warren City Sch. Dist. Bd. of Educ.,

465 U.S. 75 (1984)............................................ 15, 16

Patsy v. Bd. of Regents,

457 U.S. 496 (1982)................................ 2, 3, 5–7, 11

iv

Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89 (1984)........................................ 3, 12, 13

Pulsifer v. United States,

144 S. Ct. 718 (2024)................................................ 6

Raygor v. Regents of the Univ. of Minn.,

534 U.S. 533 (2002)................................................ 13

Terrell v. Bessemer,

406 So. 2d 337 (Ala. 1981) ....................................... 9

Wilwording v. Swenson,

404 U.S. 249 (1971).................................................. 5

Wyatt v. Cole,

504 U.S. 158 (1992)................................................ 15

Constitutional Provisions and Statutes

U.S. Const. art. VI, cl. 2 ......................................... 2, 7

U.S. Const. art. VI, cl. 3 ............................................. 7

28 U.S.C. § 1367(a) ................................................... 13

42 U.S.C. § 1983 ......................................................... 1

42 U.S.C. § 1988(b) ................................................... 14

42 U.S.C. § 1997e(a) ................................................... 5

Ala. Code § 25-4-95 ..................................................... 7

Other Authorities

Ann Althouse, Tapping the State Court Resource,

44 Vand. L. Rev. 953 (1991) ................................... 14

Erwin Chemerinsky, Federal Jurisdiction (7th ed.

2016) ................................................................. 13, 15

Cong. Globe, 42nd Cong., 1st. Sess. 376 (1871)......... 5

v

Susan Herman, Beyond Parity: Section 1983 and

the State Courts, 54 Brook. L. Rev. 1057

(1989) .......................................................... 12, 16, 17

James Leonard, A Damaged Remedy: Disability

Discrimination Claims Against State Entities

Under the Americans with Disabilities Act After

Seminole Tribe and Flores, 41 Ariz. L. Rev. 651

(1999) ...................................................................... 13

David McMillan, Barring “Analogous” State Law

Claims Is No Excuse: Haywood v. Drown and

States’ Obligation to Enforce Section 1983, 36

Fordham Urb. L.J. 945 (2009) ............................... 16

Virginia F. Milstead, State Sovereign Immunity

and the Plaintiff State: Does the Eleventh

Amendment Bar Removal of Actions Filed in

State Court?, 38 J. Marshall L. Rev. 513 (2004) ... 17

Marc E. Montgomery, Navigating the Back

Channels of Salvage Law: Procedural Options

for the Small Boat Salvor, 83 Tul. L. Rev. 1463

(2009) ...................................................................... 17

Steven H. Steinglass, The Emerging State Court

§ 1983 Action: A Procedural Review, 38 U. Miami

L. Rev. 381 (1984)............................................. 17, 18

Stephen N. Subrin, The Limitations of

Transsubstantive Procedure: An Essay on

Adjusting the “One Size Fits All” Assumption, 87

Denv. U. L. Rev. 377 (2010) ................................... 17

Jeffrey S. Sutton, 51 Imperfect Solutions: States

and the Making of American Constitutional Law

(2018) ...................................................................... 12

vi

Kenneth J. Wilbur, Concurrent Jurisdiction and

Attorney’s Fees: The Obligation of State Courts to

Hear Section 1983 Claims, 134 U. Penn. L. Rev.

1207 (1986) ............................................................. 13

1

INTEREST OF AMICUS CURIAE1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 members and

indirectly represents the interests of more than three

million companies and professional organizations of

every size, in every industry sector, and from every

region of the country. An important function of the

Chamber is to represent the interests of its members

in matters before Congress, the Executive Branch, and

the courts. To that end, the Chamber regularly files

amicus curiae briefs in cases, like this one, that raise

issues of concern to the Nation’s business community.

The decision below defies this Court’s precedents

by holding that a State may require plaintiffs to

exhaust administrative remedies before seeking relief

under 42 U.S.C. § 1983. If allowed to stand, that

holding would threaten to create serious obstacles to

businesses and trade associations that seek to

challenge state actions that violate both federal and

state rights. States could frustrate the effective and

efficient vindication of such rights by subjecting

plaintiffs to burdensome administrative schemes.

And the availability of a federal forum for adjudicating

§ 1983 claims would not eliminate the harm, but

instead would invite claim splitting and duplicative

litigation. The Chamber and its members have a

significant interest in avoiding that costly alternative.

No counsel for any party authored this brief in whole or in part,

and no party or counsel made a monetary contribution to the

preparation or submission of this brief. No person other than

amicus curiae, its members, or its counsel made a monetary

contribution to the preparation or submission of this brief.

1

2

Consistent

with

this

Court’s

longstanding

interpretation of § 1983, plaintiffs should be able to

pursue their claims in state court through a single

lawsuit that is not subject to an exhaustion

requirement.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This is a straightforward case under this Court’s

precedents. In Patsy v. Board of Regents, this Court

held that “exhaustion of state administrative

remedies” is not “a prerequisite to bringing an action

pursuant to [42 U.S.C.] § 1983.” 457 U.S. 496, 516

(1982). Since then, the Court has clarified that Patsy’s

no-exhaustion rule applies with full force to actions

filed in state court. See Felder v. Casey, 487 U.S. 131,

147 (1988).

That is because state exhaustion

requirements “are pre-empted as inconsistent with

federal law.” Id. at 134. Section 1983’s no-exhaustion

rule is part and parcel of the remedy Congress

provided for vindicating federal violations perpetrated

by state officials. As a result, state courts may not

enforce a contrary rule in a § 1983 action without

running afoul of the Supremacy Clause. See U.S.

Const. art. VI, cl. 2.

This Court has never departed from those

controlling principles.

On the contrary, it has

repeatedly struck down state laws that stifle access to

state court for § 1983 litigants. See Haywood v.

Drown, 556 U.S. 729, 742 (2009); Howlett ex rel.

Howlett v. Rose, 496 U.S. 356, 383 (1990). In doing so,

this Court has stressed that a state “jurisdictional rule

cannot be used as a device to undermine federal law,

no matter how evenhanded it may appear.” Haywood,

3

556 U.S. at 739. And it has likewise emphasized that

a State cannot place “condition[s]” on “its enforcement

of federal law.” Id. at 737. Otherwise, the States could

frustrate the cause of action that Congress provided

for the vindication of federal rights, as well as its

choice to “enabl[e] the plaintiff to choose the forum in

which to seek relief.” Patsy, 457 U.S. at 506.

The decision below cannot be squared with Patsy

and its progeny. Though Alabama has opened its

courthouse doors to § 1983 plaintiffs, the lower court

allowed the State to impose an administrative

exhaustion requirement upon certain claimants “as a

condition precedent to recovery.” Felder, 487 U.S. at

144. That statutory scheme sharply conflicts with the

“remedial objectives of the federal civil rights law,” as

it delays relief and “directs injured persons to seek

redress in the first instance from the very targets of

the federal legislation.” Id. at 153. Federal law bars

Alabama from “condition[ing] the right of recovery

that Congress has authorized” in that way. Id. at 141.

Enforcing such exhaustion requirements for § 1983

claims will significantly impede the vindication of civil

rights. And the prospect of a federal forum does not

alleviate that concern. After all, § 1983 plaintiffs often

seek to assert state-law claims alongside their federal

claims. But under the Eleventh Amendment, the

federal courts are powerless to enjoin the State for

violations of state law. See Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 120–21 (1984). The

rule adopted below thus forces civil rights plaintiffs to

engage in duplicative litigation—and to subject

themselves to the potential hazards of res judicata.

4

The problems generated by the lower court’s

decision do not stop there. Litigants sometimes have

no realistic choice but to bring their § 1983 claims in

state court, because federal court litigation may cost

more, be located in a less convenient forum, or pose

additional hurdles to relief. In addition, state courts

can remedy constitutional violations by fashioning

certain forms of equitable relief that may raise serious

federalism concerns or be unavailable in federal court.

These and other reasons weigh strongly in favor of

the Court reaffirming that § 1983’s no-exhaustion

principle applies equally in state court. The Court

should reverse the judgment below.

ARGUMENT

I. Plaintiffs Need Not Exhaust Administrative

Remedies Before Suing Under Section 1983.

This Court has long held that § 1983 does not

require a plaintiff to exhaust state administrative

remedies before filing suit. For nearly as long, this

Court has held that the Supremacy Clause prohibits

state courts from enforcing contrary state rules.

Those decisions are correct, and a routine application

of their holdings compels a ruling in Petitioners’ favor.

A. Congress Did Not Require Exhaustion For

Claims Arising Under Section 1983.

More than six decades ago, this Court held that

“relief under the Civil Rights Act may not be defeated

because relief was not first sought under state law

which provided a remedy.” McNeese v. Bd. of Educ. for

Cmty. Unit Sch. Dist. 187, 373 U.S. 668, 671 (1963).

As McNeese explained, the federal remedy provided by

§ 1983 is “supplementary to [any] state remedy,” and

5

so “the latter need not be first sought and refused

before the federal one is invoked.” Id. (citation

omitted). This Court reaffirmed McNeese’s holding in

nearly a dozen cases over the next two decades. See

Barry v. Barchi, 443 U.S. 55, 63 n.10 (1979); Gibson v.

Berryhill, 411 U.S. 564, 574 (1973); Carter v. Stanton,

405 U.S. 669, 671 (1972) (per curiam); Wilwording v.

Swenson, 404 U.S. 249, 251 (1971); Houghton v.

Shafer, 392 U.S. 639, 640–41 (1968) (per curiam); King

v. Smith, 392 U.S. 309, 312 n.4 (1968); Damico v.

California, 389 U.S. 416, 417 (1967) (per curiam).

In Patsy, this Court was asked to “reconsider

th[o]se decisions” and adopt “a ‘flexible’ exhaustion

rule” that accounted for various aspects of the State’s

remedial scheme. 457 U.S. at 499, 501 (citation

omitted). But the Court declined, explaining that its

prior decisions did not “misconstrue[] the meaning of

§ 1983.”

Id. at 502.

The statute contains no

exhaustion requirement. Rather, the 1871 Congress

enacted the law in order “to ‘throw open the doors of

the United States courts’ to individuals who were

threatened with, or who had suffered, the deprivation

of constitutional rights.” Id. at 504 (quoting Cong.

Globe, 42nd Cong., 1st. Sess. 376 (1871) (remarks of

Rep. Lowe)). Permitting an exhaustion requirement

would thwart that clear statutory design.

Moreover, when Congress enacted the Civil Rights

of Institutionalized Persons Act a century later, it

“created a specific, limited exhaustion requirement for

adult prisoners bringing actions pursuant to § 1983.”

Id. at 508; see 42 U.S.C. § 1997e(a). “Implicit in this

decision is Congress’ conclusion that the noexhaustion rule should be left standing with respect to

6

other § 1983 suits.” Patsy, 457 U.S. at 509. To hold

otherwise would render the specific exhaustion

provisions in § 1997e(a) “superfluous.” Id. at 512; see

Pulsifer v. United States, 144 S. Ct. 718, 731–732

(2024) (“When a statutory construction . . . renders an

entire subparagraph meaningless, . . . the canon

against surplusage applies with special force.”

(cleaned up)).

Accordingly, Patsy refused to overturn this Court’s

precedent and “conclude[d] that exhaustion of state

administrative remedies should not be required as a

prerequisite to bringing an action pursuant to § 1983.”

457 U.S. at 516. In so holding, this Court “settled” the

issue, Knick v. Twp. of Scott, 588 U.S. 180, 185 (2019),

subject only to Congress’ ability to revisit the statute,

should it choose to do so, see Allen v. Milligan, 599 U.S.

1, 39 (2023) (emphasizing the importance of “statutory

stare decisis”).

B. States Cannot Undermine The Federal

Right Conferred By Section 1983 Through

An Exhaustion Requirement.

This Court has also made clear that § 1983’s noexhaustion rule constitutes federal law that applies

with equal force in state courts. Congress has

entrusted the States “with providing a forum for the

vindication of federal rights violated by state or local

officials acting under color of state law.” Haywood, 556

U.S. at 735. And, although “States may establish the

rules of procedure governing litigation in their own

courts,” the federal right created by § 1983 “‘cannot be

defeated by the forms of local practice.’” Felder, 487

U.S. at 138 (quoting Brown v. W. Ry. Co. of Ala., 338

U.S. 294, 296 (1949)).

7

That principle derives from the Supremacy Clause,

which provides that “the Laws of the United

States . . . shall be the supreme Law of the Land.”

U.S. Const. art. VI, cl. 2. At the same time, it directs

that “the Judges in every State shall be bound [by

federal law], any Thing in the Constitution or Laws of

any State to the Contrary notwithstanding.” Id.

Those state judges are indeed “bound by Oath or

Affirmation” to “support th[e] Constitution” and its

supremacy over state law. Id. art. VI, cl. 3. The

Supremacy Clause’s structural guarantee therefore

applies in federal and state proceedings alike. That is,

any state law which “interferes with or is contrary to

federal law . . . must yield,” even if it is “clearly within

a State’s acknowledged power.” Free v. Bland, 369

U.S. 663, 666 (1962); see Armstrong v. Exceptional

Child Ctr., Inc., 575 U.S. 320, 324 (2015).

Section 1983’s no-exhaustion rule reflects “the

meaning of the statute.” Patsy, 457 U.S. at 501. And

it thus trumps Alabama’s exhaustion requirement, see

Ala. Code § 25-4-95, which cannot constitutionally be

applied to bar relief in this suit. In fact, this Court has

already held that the Supremacy Clause prohibits the

States from “impos[ing] an exhaustion requirement on

persons who choose to assert their federal right in

state courts.” Felder, 487 U.S. at 146.

The decision below failed to address—let alone

distinguish—that controlling precedent. And it made

the same mistake as the lower court did in Felder. As

in that case, the Alabama Supreme Court believed

that Patsy was “inapplicable to this state-court suit on

the theory that States retain the authority to prescribe

the rules and procedures governing suits in their

8

courts.” Id. at 147; see Pet.App.11. But, as Felder

explained, that state authority “does not extend so far

as to permit States to place conditions on the

vindication of a federal right.” Felder, 487 U.S. at 147.

That is exactly what Alabama Code § 25-4-95 does

here. Like the Wisconsin law in Felder, it “burdens

the exercise of the federal right by forcing civil rights

victims who seek redress in state courts to comply

with a requirement that is entirely absent from civil

rights litigation in federal courts.” Id. at 141. It

“operates as a condition precedent to recovery.” Id. at

144. And, as a result, the statute will “predictably

produce different outcomes in federal civil rights

litigation based solely on whether that litigation takes

place in state or federal court.” Id. at 141. Felder

makes clear that the “States may not apply such an

outcome-determinative law when entertaining

substantive federal rights in their courts.” Id.

Unable to defend the reasoning of the decision

below, Alabama tacks in a new direction, insisting that

its law “is a neutral rule of judicial administration and

thus a valid excuse for declining jurisdiction over

Petitioners’ claims.” BIO.16. But that argument

again runs headlong into Felder. The Wisconsin law

in Felder likewise did “not discriminate between state

and federal causes of action.” 487 U.S. at 144. Even

so, this Court recognized that the constitutional

problem remained. As here, the statute “condition[ed]

the right to bring suit against the very persons and

entities Congress intended to subject to liability” for

violations of federal law. Id. at 144–145. And that, as

already explained, a State may not do. Indeed, it

makes no sense to think that “those who sought to

9

vindicate their federal rights in state courts could be

required to seek redress in the first instance from the

very state officials whose hostility to those rights

precipitated their injuries.” Id. at 147. Such an

exhaustion requirement is “utterly inconsistent with

the remedial purposes” of § 1983. Id. at 149.

Nor does it matter that the Alabama law serves to

“limit[] a court’s jurisdiction.” BIO.15. “The force of

the Supremacy Clause is not so weak that it can be

evaded by mere mention of the word ‘jurisdiction.’”

Howlett, 496 U.S. at 382–83. And the State is wrong

to suggest that Alabama Code § 25-4-95 reflects

concerns regarding its courts’ “competence over the

subject matter that jurisdictional rules are designed to

protect.” BIO.15 (quoting Haywood, 556 U.S. at 739).

Alabama courts routinely exercise jurisdiction over

the subject matter of this suit. In fact, they “must

accept jurisdiction over claims brought under 42

U.S.C. § 1983, if a § 1983 plaintiff selects a state court

as his forum.” Terrell v. Bessemer, 406 So. 2d 337, 340

(Ala. 1981) (emphasis added). That the State’s courts

“will hear the entire § 1983 cause of action once a

plaintiff complies with [Alabama Code § 25-4-95],

therefore, in no way alters the fact that the statute

discriminates against the precise type of claim

Congress has created.” Felder, 487 U.S. at 145.

Alabama “may not alter the outcome of federal claims

it chooses to entertain in its courts by demanding

compliance” with an exhaustion requirement that is

“inapplicable when such claims are brought in federal

court.” Id. at 152; see Haywood, 556 U.S. at 739–40.

Alabama thus misses the mark in trying to

analogize this case to Johnson v. Fankell, 520 U.S. 911

10

(1997). See BIO.13–15. There, this Court held that

Idaho’s courts could “deny an interlocutory appeal” of

a qualified immunity determination. Johnson, 520

U.S. at 923. But while qualified immunity may in

some sense be inferred from § 1983, “the right to

immediate appellate review of [a qualified-immunity]

ruling in a federal case has its source in [28 U.S.C.]

§ 1291.” Id. at 921. The latter is a “federal procedural

right that simply does not apply in a nonfederal

forum.” Id. In addition, unlike the exhaustion

requirement here, and unlike the exhaustion

requirement in Felder, Idaho’s final judgment rule

was not outcome-determinative.

That is, “the

postponement of the appeal until after final judgment

[did] not affect the ultimate outcome of the case.”

Johnson, 520 U.S. at 921. The defendants were still

“able to argue their immunity from suit claim to the

trial court, just as they would to a federal court,” and

to have the trial court’s decision reviewed on appeal.

Id.

By contrast, Petitioners’ failure to comply with

Alabama’s exhaustion requirement in this case barred

their suit entirely. The statute imposed “a substantive

condition on the right to sue governmental officials

and entities.” Felder, 487 U.S. at 152. And it “resulted

in a judgment dismissing a complaint that would not

have been dismissed—at least not without a judicial

determination of the merits of the claim—if the case

had been filed in a federal court.” Johnson, 520 U.S.

at 920. That conflict confirms that the Alabama law

“is preempted, and its application is unconstitutional,

under the Supremacy Clause.” Crosby v. Nat’l Foreign

Trade Council, 530 U.S. 363, 388 (2000).

11

* * *

In short, this Court’s decisions in Patsy and Felder

say everything necessary to reverse the judgment

below. Those cases read § 1983 to include a noexhaustion rule, and the Supremacy Clause requires

that rule to apply equally in state as in federal courts.

Section 1983 plaintiffs thus need not exhaust state

administrative remedies before filing suit—whether

that be in state or federal court. The Alabama

Supreme Court erred in holding otherwise.

II. State Exhaustion Requirements Significantly

Impede The Vindication Of Federal Rights.

Alabama also argues that there is “little practical

difference for § 1983 plaintiffs” if they must comply

with the State’s exhaustion requirement because

plaintiffs can still “sue in federal court.” BIO.20. But

that view contradicts the statutory scheme and this

Court’s precedents. Congress “enabl[ed] the plaintiff

to choose the forum in which to seek relief.” Patsy, 457

U.S. at 506. And upholding the decision below would

create a variety of impediments to recovery for civil

rights plaintiffs.

Those impediments would harm businesses and

trade associations that face unlawful state regulation.

Section 1983 is a crucial tool for businesses and trade

associations to vindicate their federal rights. The

Chamber itself regularly files lawsuits seeking

injunctive relief against state laws that violate federal

rights, and those suits often include official-capacity

claims against state officers under § 1983. See, e.g.,

Chamber of Commerce of the United States of America

v. Bonta, 62 F.4th 473, 478 (9th Cir. 2023) (holding

preempted California’s criminal prohibition of certain

12

arbitration agreements in employment relationships).

Allowing States to impose substantive conditions on

those claims will limit businesses’ and trade

associations’ ability to challenge unlawful state action.

A. State Exhaustion Requirements Will Lead

To Burdensome Duplicative Litigation.

To start, Alabama’s position would lead to

unnecessarily duplicative litigation and risk

conflicting judgments. Section 1983 is not the only

mechanism for vindicating civil rights. State law and

state constitutions place “independent limits on state

and local power,” which can provide similar or even

greater protection as compared to their federal

counterparts.

Jeffrey S. Sutton, 51 Imperfect

Solutions: States and the Making of American

Constitutional Law 173 (2018). As a result, businesses

and other victims of civil rights violations that seek

judicial redress often raise both state and federal

claims. See, e.g., Susan Herman, Beyond Parity:

Section 1983 and the State Courts, 54 Brook. L. Rev.

1057, 1075 (1989) (noting the “substantial overlap of

section 1983 actions and state tort actions”).

By routing § 1983 plaintiffs to federal court, state

exhaustion requirements like Alabama’s will force

these plaintiffs to split their claims across multiple

lawsuits.

That is because injunctive relief for

violations of state law by state actors is generally

unavailable in federal court. In Pennhurst, this Court

held that “a claim that state officials violated state law

in carrying out their official responsibilities is a claim

against the State that is protected by the Eleventh

Amendment.” 465 U.S. at 121. And it explained that

“this principle applies as well to state-law claims

13

brought into federal court under pendent jurisdiction.”

Id. The federal courts are consequently powerless to

“instruct[] state officials on how to conform their

conduct to state law” absent an “unequivocal[]” waiver

of sovereign immunity. Id. at 99, 106; see also Raygor

v. Regents of the Univ. of Minn., 534 U.S. 533, 542

(2002) (holding that plaintiffs cannot invoke 28 U.S.C.

§ 1367(a) for pendent “claims against nonconsenting

state defendants”).

The net result is that a federal forum will rarely

cure the harm produced by state-imposed exhaustion

requirements. Following Pennhurst, “[p]laintiffs who

claim relief against a state official under both state

law and section 1983 can no longer bring a single

action in federal court.”

Kenneth J. Wilbur,

Concurrent Jurisdiction and Attorney’s Fees: The

Obligation of State Courts to Hear Section 1983

Claims, 134 U. Penn. L. Rev. 1207, 1212 (1986). And

this “substantially undermines the attractiveness of

the federal forum” for many types of federal civil rights

claims. Erwin Chemerinsky, Federal Jurisdiction 474

(7th ed. 2016). Under Alabama’s regime, many

plaintiffs will have to split their claims between state

and federal court and then pursue them in parallel

litigation.

Such claim splitting “is obviously more expensive

than a single proceeding” for plaintiffs seeking to

enforce both federal and state civil rights. James

Leonard,

A

Damaged

Remedy:

Disability

Discrimination Claims Against State Entities Under

the Americans with Disabilities Act After Seminole

Tribe and Flores, 41 Ariz. L. Rev. 651, 751 (1999).

Plaintiffs must pay duplicative filing fees, draft

14

separate pleadings, navigate different and sometimes

conflicting procedural requirements, conduct parallel

discovery, and ultimately participate in multiple trials

and potential appeals. Those additional costs pose

practical “burdens [on] the litigation of the federal

claim in federal court.” Ann Althouse, Tapping the

State Court Resource, 44 Vand. L. Rev. 953, 975 (1991).

And that harm is inconsistent with this Court’s

decisions holding that state exhaustion requirements

are incompatible with § 1983.

Forcing § 1983 plaintiffs to split their claims

similarly undermines 42 U.S.C. § 1988’s fee-shifting

mechanism. “Congress viewed the fees authorized by

§ 1988 as ‘an integral part of the remedies necessary

to obtain’ compliance with § 1983.”

Maine v.

Thiboutot, 448 U.S. 1, 11 (1980) (citation omitted).

And, because of the Supremacy Clause, this “fee

provision is part of the § 1983 remedy whether the

action is brought in federal or state court.” Id.

Moreover, when a plaintiff pursues related state and

federal claims in a single proceeding, “[m]uch of

counsel’s time will be devoted generally to the

litigation as a whole,” and he may therefore “recover a

fully compensatory fee” for his overlapping efforts.

Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). But

that remedy is unavailable where a plaintiff is

constrained—because

of

a

state

exhaustion

requirement—to split his claims between multiple

lawsuits. Even if he obtains full relief from his § 1983

claim in federal court, he will need to bear his own

duplicative costs from the parallel state-court

litigation. See 42 U.S.C. § 1988(b) (limiting recovery

to attorney’s fees incurred in an “action or proceeding

to enforce a provision of [§ 1983]”).

15

Subjecting plaintiffs to claim splitting also creates

unnecessary risks of res judicata. Section 1983 claims

are subject to ordinary preclusion principles. See

Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S.

75, 84 (1984); Allen v. McCurry, 449 U.S. 90, 104

(1980). And so a § 1983 plaintiff who pursues parallel

litigation “risk[s] the res judicata bar if the state court

decides first.” Chemerinsky, supra, at 475 (italics

added). To make matters worse, the preclusive effect

of that decision will be dictated by “the law of the State

in which the judgment was rendered.” Migra, 465

U.S. at 81. State preclusion law and state exhaustion

requirements can therefore combine to thwart the

vindication of federal rights. That is contrary to the

core purpose of § 1983, which is “to provide relief to

victims” whenever state actors “deprive [them] of their

federally guaranteed rights.” Wyatt v. Cole, 504 U.S.

158, 161 (1992).

This is not to say that a state-court decision will

always preclude the separately litigated federal claim.

State preclusion law must “satisfy the applicable

requirements of the Due Process Clause.” Kremer v.

Chem. Constr. Corp., 456 U.S. 461, 482 (1982). And it

would raise serious due process concerns if a State

were to preclude a § 1983 claim that its courts could

not hear prior to exhaustion. But States frequently

treat exhaustion as an affirmative defense, not a

jurisdictional bar. See, e.g., Hawthorne v. Vill. of

Olympia Fields, 790 N.E.2d 832, 839–40 (Ill. 2003);

Jones v. Vill. of Chagrin Falls, 674 N.E.2d 1388, 1391

(Ohio 1997). And claim-splitting plaintiffs could also

exhaust shortly before the state court rules on their

state-law claims. In either case, the “federal claim

could have been litigated in the state-court

16

proceeding.” Migra, 465 U.S. at 83. And res judicata

will likely bar relief under § 1983. Felder avoids that

perverse result by holding that state exhaustion

requirements are inconsistent with the scope of the

remedy provided under § 1983.

B. State Exhaustion Requirements Create

Additional Concerns.

State exhaustion requirements may pose several

additional concerns by depriving § 1983 litigants of

access to a state forum.

First, state exhaustion requirements undercut

interests of comity and federalism by channeling

claims against state actors into federal court. Indeed,

“[b]ecause section 1983 provides a cause of action

against state officials,” “federal court adjudication of

section 1983 claims is frequently seen as potentially or

actually intrusive upon the states’ power.” Herman,

supra, at 1073.

This Court has recognized as

much: “federalism concerns would be raised” if

plaintiffs had “no choice but to bring their complaints

concerning state actions to federal court.” Thiboutot,

448 U.S. at 11 n.12. “There is no comity or federalism

problem,” however, “if a state court finds a state

official guilty of a civil rights violation.” Herman,

supra, at 1074.

Not only that, but “by entertaining federal claims,”

state courts can also “help Congress promote the

substantive policies underlying federal law while

relieving the federal judiciary of the burden of

adjudicating all federal claims.” David McMillan,

Barring “Analogous” State Law Claims Is No Excuse:

Haywood v. Drown and States’ Obligation to Enforce

Section 1983, 36 Fordham Urb. L.J. 945, 946 (2009).

17

Upholding state exhaustion requirements would thus

circumvent the critical role that state courts play in

shaping federal law. See Herman, supra, at 1073.

Second, Congress enabled plaintiffs to weigh the

pros and cons of bringing their § 1983 claims in state

or federal court and to decide for themselves which

forum best suits their case-specific needs. Businesses

and other § 1983 plaintiffs alike recognize that federal

civil litigation differs from state civil litigation, which

can result in significant discrepancies in the time it

takes to resolve an action, see Stephen N. Subrin, The

Limitations of Transsubstantive Procedure: An Essay

on Adjusting the “One Size Fits All” Assumption, 87

Denv. U. L. Rev. 377, 406 n.56 (2010), and in the costs

associated with litigating the matter, see Virginia F.

Milstead, State Sovereign Immunity and the Plaintiff

State: Does the Eleventh Amendment Bar Removal of

Actions Filed in State Court?, 38 J. Marshall L. Rev.

513, 538 (2004). Differences in accessibility and

navigability may also favor litigating the case in state

court rather than federal court, or vice-versa. See

Marc E. Montgomery, Navigating the Back Channels

of Salvage Law: Procedural Options for the Small Boat

Salvor, 83 Tul. L. Rev. 1463, 1494–95 (2009). These

significant differences favor letting plaintiffs choose

whether to bring their § 1983 claim in a state or a

federal court.

Third, state courts may provide § 1983 litigants

with “equitable relief not available in federal court.”

Steven H. Steinglass, The Emerging State Court

§ 1983 Action: A Procedural Review, 38 U. Miami L.

Rev. 381, 410 (1984). After all, “the limitations on

federal equitable intervention are not inherent in a

18

§ 1983 cause of action.” Id. at 504. And these

“limitations on [federal courts’] injunctive power” do

not apply to state courts. Id. at 411. As such, state

courts have more leeway to fashion relief that will

remedy constitutional wrongs suffered by § 1983

plaintiffs.

* * *

In all these ways, state courts play a vital role in

developing federal law and vindicating federal rights

through § 1983. Forcing litigants to bring their claims

in federal court because of state exhaustion

requirements thwarts the remedy that Congress

created and the choice that Congress afforded

plaintiffs to have their claims heard in state court.

The Court should reaffirm that such exhaustion

requirements are preempted by § 1983’s contrary rule.

19

CONCLUSION

The Court should reverse the judgment below.

Respectfully submitted,

BRIAN A. KULP

DECHERT LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

JONATHAN D. URICK

JORDAN L. VON BOKERN

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

STEVEN A. ENGEL

Counsel of Record

MICHAEL H. MCGINLEY

JUSTIN W. AIMONETTI

DECHERT LLP

1900 K Street, NW

Washington, DC 20006

(202) 261-3369

steven.engel@dechert.com

Counsel for Amicus Curiae

April 18, 2024