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 AMICI CURIAE PUBLIC CITIZEN

AND AMERICAN CIVIL LIBERTIES UNION

FOUNDATION IN SUPPORT OF

PETITIONERS

DAVID D. COLE

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street NW

Washington, DC 20005

April 2024

WENDY LIU

Counsel of Record

ALLISON M. ZIEVE

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

wliu@citizen.org

Attorneys for Amici Curiae

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 3

I. Requiring exhaustion of state administrative

remedies as a precondition to suit is contrary to

Section 1983. .......................................................... 3

II. Permitting states to impose exhaustion

requirements as a condition of bringing Section

1983 claims would undermine the Section 1983

right of action......................................................... 6

III.State courts provide an important forum for the

litigation of Section 1983 claims. .......................... 9

CONCLUSION.......................................................... 17

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) .................................................. 12

ASARCO Inc. v. Kadish,

490 U.S. 605 (1989) ................................................ 14

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ................................................ 14

Astoria Federal Savings & Loan Ass’n v. Solimino,

501 U.S. 104 (1991) .................................................. 7

B & B Hardware, Inc. v. Hargis Industries, Inc.,

575 U.S. 138 (2015) .................................................. 7

Baez-Cruz v. Municipality of Comerio,

140 F.3d 24 (1st Cir. 1998) ...................................... 8

Board of Regents of University of State of New York

v. Tomanio,

446 U.S. 478 (1980) .................................................. 9

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) ................................................ 14

Braxton v. Zavaras,

614 F.3d 1156 (10th Cir. 2010) ................................ 9

Carroll v. City of Mount Clemens,

139 F.3d 1072 (6th Cir. 1998) .......................... 12, 13

Citizens for Free Speech, LLC v. County of Alameda,

953 F.3d 655 (9th Cir. 2020) .................................. 11

Cuesnongle v. Ramos,

835 F.2d 1486 (1st Cir. 1987) .......................... 10, 11

Ex parte Smith,

683 So. 2d 431 (Ala. 1996) ....................................... 8

Felder v. Casey,

487 U.S. 131 (1988) .................................. 2, 3, 4, 5, 6

iii

Gearing v. City of Half Moon Bay,

54 F.4th 1144 (9th Cir. 2022) ................................ 12

Gomez v. Toledo,

446 U.S. 635 (1980) .................................................. 3

Hawaii Housing Authority v. Midkiff,

467 U.S. 229 (1984) ................................................ 12

Haywood v. Drown,

556 U.S. 729 (2009) .................................................. 9

Health & Hospital Corp. of Marion County v.

Talevski,

599 U.S. 166 (2023) .................................................. 3

Johnson v. Rivera,

272 F.3d 519 (7th Cir. 2001) .................................... 9

Lindas v. Cady,

515 N.W.2d 458 (Wis. 1994) .................................... 8

Maine v. Thiboutot,

448 U.S. 1 (1980) ...................................................... 9

Majors v. Engelbrecht,

149 F.3d 709 (7th Cir. 1998) .................................. 11

Migra v. Warren City School District Board of

Education,

465 U.S. 75 (1984) .................................................. 11

Mitchum v. Foster,

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

Nationwide Mutual Insurance Co. v. Unauthorized

Practice of Law Committee,

283 F.3d 650 (5th Cir. 2002) .................................. 12

Owen v. City of Independence,

445 U.S. 622 (1980) .................................................. 3

Patsy v. Board of Regents of State of Florida,

457 U.S. 496 (1982) .................................. 2, 5, 6, 8, 9

iv

Peak Alarm Co. v. Salt Lake City Corp.,

243 P.3d 1221 (Utah 2010) .................................... 14

Pennhurst State School & Hospital v. Halderman,

465 U.S. 89 (1984) .................................................. 10

Plough ex rel. Plough v. West Des Moines Community

School District,

70 F.3d 512 (8th Cir. 1995) ...................................... 7

Preiser v. Rodriguez,

411 U.S. 475 (1973) .................................................. 4

Railroad Commission of Texas v. Pullman Co.,

312 U.S. 496 (1941) ................................................ 12

Smith v. Wisconsin Department of Agriculture,

23 F.3d 1134 (7th Cir. 1994) .................................. 15

Sprint Communications, Inc. v. Jacobs,

571 U.S. 69 (2013) .................................................. 11

Taylor v. City of Lawrenceburg,

909 F.3d 177 (7th Cir. 2018) .................................... 8

United States v. Price,

383 U.S. 787 (1966) .................................................. 3

University of Tennessee v. Elliott,

478 U.S. 788 (1986) .................................................. 7

Urban League of Essex County v. Township of

Mahwah,

370 A.2d 521 (N.J. Super. Ct. App. Div. 1977) ..... 15

Wallace v. Kato,

549 U.S. 384 (2007) .................................................. 9

Younger v. Harris,

401 U.S. 37 (1971) ...................................... 11, 12, 13

Statutes

42 U.S.C. § 1983 .......................................... 1, 3, 5, 6, 8

v

42 U.S.C. § 1997e(a)................................................ 5, 9

Other Authorities

American Bar Association, Sword & Shield: A

Practical Approach to Section 1983 Litigation

(5th ed. 2021) ................................................... 11, 16

Debra Lyn Bassett, The Forum Game,

84 N.C. L. Rev. 333 (2006) ..................................... 14

Stephen B. Burbank & Stephen N. Subrin, Litigation

and Democracy: Restoring a Realistic Prospect of

Trial,

46 Harv. C.R.-C.L. L. Rev. 399 (2011)................... 17

Zachary D. Clopton, Procedural Retrenchment and

the States,

106 Cal. L. Rev. 411 (2018).................................... 14

Scott Dodson, Beyond Bias in Diversity Jurisdiction,

69 Duke L.J. 267 (2019) ......................................... 16

Richard Frankel, Regulating Privatized Government

Through § 1983,

76 U. Chi. L. Rev. 1449 (2009)............................... 13

Barry Friedman, Under the Law of Federal

Jurisdiction: Allocating Cases Between Federal and

State Courts,

104 Colum. L. Rev. 1211 (2004) ............................ 11

Susan N. Herman, Beyond Parity: Section 1983 and

the State Courts,

54 Brook. L. Rev. 1057 (1989) ............................... 13

F. Andrew Hessick, Cases, Controversies, and

Diversity,

109 Nw. U. L. Rev. 57 (2014)................................. 15

vi

Sheldon H. Nahmod, Civil Rights & Civil Liberties

Litigation: The Law of Section 1983

(2023 ed.) .......................................................... 10, 11

Oregon Judicial Branch, Oregon Goals for Timely

Disposition—Age of Terminated Cases 2023 ........ 17

Oregon Judicial Branch, Time to Disposition

Standards for Oregon Circuit Courts (2018) ........ 17

William E. Ringel, Searches & Seizures, Arrests &

Confessions (2d ed., 2024 update) ......................... 13

Wyatt Sassman, A Survey of Constitutional Standing

in State Courts,

8 Ky. J. Equine, Agric., & Nat. Res. L. 349

(2015) ...................................................................... 15

Steven H. Steinglass, Section 1983 Litigation in

State and Federal Courts (2023 ed.)................ 10, 15

Hon. Karen L. Stevenson & James E. Fitzgerald,

Federal Civil Procedure Before Trial (The Rutter

Group Practice Guide)

(Cal. & 9th Cir. ed., 2024 update) ......................... 16

Stephen N. Subrin & Thomas O. Main, Braking the

Rules: Why State Courts Should Not Replicate

Amendments to the Federal Rules of Civil

Procedure,

67 Case W. Res. L. Rev. 501 (2016) ....................... 17

U.S. Courts, Table C-5, U.S. District Courts–Civil

Federal Judicial Caseload Statistics .................... 16

U.S. Courts, Table T-3, U.S. District Courts–Trials

Federal Judicial Caseload Statistics. ................... 16

17A Wright & Miller, Federal Practice & Procedure

(3d ed. 2023 update)............................................... 12

INTEREST OF AMICI CURIAE 1

0F

Public Citizen is a nonprofit consumer-advocacy

organization with members in all 50 states. Public

Citizen appears on behalf of its members before

Congress, administrative agencies, and the courts on

a wide range of issues involving protection of

consumers and workers, public health and safety, and

maintaining openness and integrity in government.

One of Public Citizen’s interests is ensuring that

federal and state governments comply with laws that

affect their citizens. The ability of citizens to enforce

those laws, including through the private right of

action provided in 42 U.S.C. § 1983, is vital to

guaranteeing such compliance. Public Citizen

therefore submits this brief because respondent’s

position, if adopted, would undermine the Section

1983 right of action and impede plaintiffs’ choice of a

state court forum for their Section 1983 claims.

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with

nearly two million members and supporters dedicated

to the principles of liberty and equality embodied in

the Constitution. Since its founding more than 100

years ago, the ACLU has appeared before this Court

in numerous cases. The ACLU has long used Section

1983 lawsuits to vindicate civil rights and civil

liberties, and its interest is in ensuring that it

continues to play that role, in state as well as federal

courts.

––––––––––––––––––––––––

1 This brief was not written in whole or part by counsel for a

party. No one other than amici curiae made a monetary

contribution to the preparation or submission of the brief.

2

SUMMARY OF ARGUMENT

A state law requiring exhaustion of state administrative remedies before an individual can bring a

Section 1983 claim is contrary to both the statute’s

text and its purpose of providing a legal remedy for

violations of federal rights. A state-imposed

exhaustion requirement cannot be squared with this

Court’s decisions in Patsy v. Board of Regents of State

of Florida, 457 U.S. 496 (1982), and Felder v. Casey,

487 U.S. 131 (1988), regardless of whether the Section

1983 lawsuit is filed in state or federal court.

Allowing states to impose administrative

exhaustion requirements on Section 1983 claims

would undermine the Section 1983 right of action for

reasons that apply equally to state and federal court

lawsuits. First, the preclusive effect of a state

administrative determination could effectively decide

the Section 1983 lawsuit. Second, without tolling of

the statute of limitations, an exhaustion requirement

could make the Section 1983 claim unavailable.

Plaintiffs may have a variety of sound reasons for

choosing to sue in state court. For instance, when a

plaintiff alleges both a Section 1983 claim and statelaw claims, the state court may be the only or most

appropriate forum for adjudication of all the claims in

the same case. And where abstention doctrines may

be triggered, filing suit in state court can avoid

dismissal or unnecessary delay. In addition,

procedural and practical considerations may support

the choice of a state court forum.

3

ARGUMENT

I. Requiring exhaustion of state administrative

remedies as a precondition to suit is contrary

to Section 1983.

A. Section 1983 “provide[s] an express cause of

action to any person deprived (by someone acting

under color of state law) of ‘any rights … secured by

the Constitution and laws.’” Health & Hosp. Corp. of

Marion Cnty. v. Talevski, 599 U.S. 166, 171 (2023)

(omission in original; quoting 42 U.S.C. § 1983). The

statutory text—imposing liability on “[e]very person”

who under color of state law violates the federal rights

of “any” person, 42 U.S.C. § 1983—has an “expansive

sweep,” with “language [that] is absolute and

unqualified,” Owen v. City of Indep., 445 U.S. 622, 635

(1980); see Felder, 487 U.S. at 139 (stating that

Section 1983 “is to be accorded ‘a sweep as broad as its

language’” (quoting United States v. Price, 383 U.S.

787, 801 (1966)).

Nothing in the statutory text imposes any

prerequisite to suit, let alone one requiring

exhaustion of state administrative remedies. As this

Court has explained, “the plain terms of § 1983”

impose “only two” requirements to state a cause of

action: “First, the plaintiff must allege that some

person has deprived him of a federal right. Second, he

must allege that the person who has deprived him of

that right acted under color of state or territorial law.”

Gomez v. Toledo, 446 U.S. 635, 640 (1980). Requiring

exhaustion as a precondition to suit imposes a third

requirement unsupported by the plain text. It is an

impermissible “condition[] on the vindication of a

federal right.” Felder, 487 U.S. at 147.

4

An “assessment of the applicability of a state law

to federal civil rights litigation … in light of the

purpose and nature of the federal right,” id. at 139,

confirms the point. In enacting Section 1983,

Congress “was concerned that state instrumentalities

could not protect [federal] rights; it realized that state

officers might, in fact, be antipathetic to the

vindication of those rights.” Mitchum v. Foster, 407

U.S. 225, 242 (1972). Requiring individuals to exhaust

state administrative remedies and “seek redress in

the first instance from the very targets of the federal

legislation[] is inconsistent in both purpose and effect

with the remedial objectives of the federal civil rights

law.” Felder, 487 U.S. at 153; see Preiser v. Rodriguez,

411 U.S. 475, 518 (1973) (Brennan, J., dissenting)

(“Exhaustion of state remedies is not required

precisely because such a requirement would

jeopardize the purposes of the Act.”). As this Court has

stated, it is “plain that Congress never intended that

those injured by governmental wrongdoers could be

required, as a condition of recovery, to submit their

claims to the government responsible for their

injuries.” Felder, 487 U.S. at 142.

Since the enactment of Section 1983, Congress has

imposed an exhaustion requirement on Section 1983

claims only when they are brought by prisoners with

respect to prison conditions. Specifically, the Prison

Litigation Reform Act (PLRA) provides:

No action shall be brought with respect to

prison conditions under section 1983 of this

title … by a prisoner confined in any jail, prison,

or other correctional facility until such

administrative remedies as are available are

exhausted.

5

42 U.S.C. § 1997e(a). As the Court has explained, in

requiring exhaustion for Section 1983 suits brought

by prisoners to challenge prison conditions,

“Congress[] conclu[ded] that the no-exhaustion rule

should be left standing with respect to other § 1983

suits.” Patsy, 457 U.S. at 509. Indeed, “the exhaustion

provisions of [Section 1997e] make sense, and are not

superfluous, only if exhaustion could not be required

before its enactment and if Congress intended to carve

out a narrow exception to this no-exhaustion rule.” Id.

at 512.

Accordingly, as the Court has held, “exhaustion of

state administrative remedies should not be required

as a prerequisite to bringing an action pursuant to

§ 1983.” Id. at 516.

B. Nothing in the text of Section 1983 supports a

different rule for cases litigated in state court.

Although Patsy concerned a Section 1983 lawsuit in

federal court, the Court’s reasoning there easily

applies to state court actions. Thus, in Felder, this

Court applied Patsy to reverse a decision of a state

supreme court that a Wisconsin notice-of-claim

statute applied to Section 1983 actions brought in

state court. 487 U.S. at 134. The Court explained that

“the notice provision impose[d] an exhaustion

requirement on persons who cho[se] to assert their

federal right in state courts” and that, under Patsy,

there is no exhaustion requirement for a Section 1983

claim. Id. at 146. The state law thus “burden[ed] 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.

6

The fact that Felder was litigated in state court,

rather than federal court, offered no basis for veering

from the no-exhaustion rule set forth in Patsy:

Given the evil at which the federal civil rights

legislation was aimed, there is simply no reason

to suppose that Congress meant “to provide

these individuals immediate access to the

federal courts notwithstanding any provision of

state law to the contrary,” yet contemplated

that those who sought to 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 (quoting Patsy, 457 U.S. at 504).

Put simply, regardless of whether a Section 1983

lawsuit is filed in federal or state court, “[a] state law

… that directs injured persons to seek redress in the

first instance from the very targets of the federal

legislation[] is inconsistent in both purpose and effect

with the remedial objectives of the federal civil rights

law.” Id. at 153. There is no basis in the text or

purpose of Section 1983, or in this Court’s precedents,

to read the statute differently depending on whether

the case is brought in state or federal court.

II. Permitting states to impose exhaustion

requirements as a condition of bringing

Section 1983 claims would undermine the

Section 1983 right of action.

Irrespective of whether a Section 1983 claim is

litigated in state or federal court, conditioning

availability of the claim on the plaintiff’s exhaustion

of state administrative remedies would undermine

the federal right of action. In at least two respects,

7

exhaustion requirements could effectively determine

the outcome of Section 1983 claims before they even

get to court.

First, state administrative determinations can

have preclusive effect in later lawsuits. See Univ. of

Tenn. v. Elliott, 478 U.S. 788, 799 (1986). If

exhaustion were required, that preclusive effect could

effectively “reduce to insignificance” the Section 1983

lawsuit. Astoria Fed. Sav. & Loan Ass’n v. Solimino,

501 U.S. 104, 111–12 (1991). “When exhausting an

administrative process is a prerequisite to suit in

court, giving preclusive effect to the agency’s

determination in that very administrative process

could render the judicial suit ‘strictly pro forma.’” B &

B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138,

152 (2015) (quoting Astoria, 501 U.S. at 111). If

plaintiffs were required to exhaust administrative

remedies prior to suit, only plaintiffs who lost in the

administrative proceedings would file suit. “In such a

case, however, the [defendant] would likely enjoy an

airtight defense of collateral estoppel if a state agency

determination on the merits were given preclusive

effect” in the state court Section 1983 litigation.

Astoria, 501 U.S. at 111.

For example, in Plough ex rel. Plough v. West Des

Moines Community School District, 70 F.3d 512 (8th

Cir. 1995), a student brought a Section 1983 lawsuit

against a school district and its board for violating his

due process rights. Before filing suit, the student

unsuccessfully pursued an administrative appeal

before the state board of education. Id. at 514. The

Eighth Circuit held that both issue preclusion and

claim preclusion barred the student from litigating his

Section 1983 lawsuit in federal court. Id. at 516–17.

8

In numerous other cases as well, federal and state

courts have granted summary judgment to a

defendant or dismissed a plaintiff’s Section 1983 claim

based on the preclusive effect of an administrative

determination. See, e.g., Taylor v. City of

Lawrenceburg, 909 F.3d 177, 180–82 (7th Cir. 2018)

(concluding that issue preclusion barred litigation of a

Section 1983 retaliatory discharge claim after an

administrative finding that the plaintiff’s discharge

was not retaliatory); Baez-Cruz v. Municip. of

Comerio, 140 F.3d 24, 31 (1st Cir. 1998) (concluding

that an administrative finding that the plaintiffs’

dismissals were not discriminatory had “collateral

estoppel effect” because “[t]his factual issue [was] the

basis of Plaintiffs’ federal constitutional claim”); Ex

parte Smith, 683 So. 2d 431, 436 (Ala. 1996) (affirming

that collateral estoppel barred a faculty member’s

Section 1983 claim alleging unlawful termination

where an administrative panel had found that the

termination was for good cause and the plaintiff did

not seek state court review of the administrative

decision); Lindas v. Cady, 515 N.W.2d 458, 459 (Wis.

1994) (stating that issue preclusion barred litigation

of a Section 1983 claim alleging sex discrimination in

light of a state agency’s finding that the defendant had

not discriminated against the plaintiff on the basis of

sex).

Second, as this Court has recognized, without

tolling the statute of limitations pending exhaustion

of

administrative

remedies,

an

exhaustion

requirement “might result in the effective repeal of

§ 1983.” Patsy, 457 U.S. at 514 n.17. Without tolling,

exhaustion puts plaintiffs in a “self-evident”

“procedural catch 22”: “the [plaintiff] who files suit

under § 1983 prior to exhausting administrative

9

remedies risks dismissal … whereas the [plaintiff]

who waits to exhaust his administrative remedies

risks dismissal based upon untimeliness.” Johnson v.

Rivera, 272 F.3d 519, 521–22 (7th Cir. 2001) (tolling

the limitations period while the plaintiff pursued the

administrative exhaustion required by the PLRA).

No “federal tolling rule” exists for Section 1983

claims. Wallace v. Kato, 549 U.S. 384, 394 (2007); see

Bd. of Regents of Univ. of State of N.Y. v. Tomanio, 446

U.S. 478, 483–86 (1980). Instead, state law governs

“tolling rules, just as … for the length of statutes of

limitations.” Wallace, 549 U.S. at 394. And in some

states, the limitations period is not tolled while a

plaintiff exhausts administrative remedies. See

Braxton v. Zavaras, 614 F.3d 1156, 1160 (10th Cir.

2010) (in a case where exhaustion was required under

the PLRA, holding that “under Colorado law, the

statute of limitations is not automatically tolled

whenever an individual pursues administrative

remedies”).

These concerns fully support the rule that

exhaustion of state administrative remedies is not a

prerequisite to pursuing a Section 1983 claim, in

either federal or state court.

III. State courts provide an important forum for

the litigation of Section 1983 claims.

Federal and state courts have concurrent

jurisdiction over Section 1983 claims, “enabling the

plaintiff to choose the forum in which to seek relief.”

Haywood v. Drown, 556 U.S. 729, 735 (2009) (quoting

Patsy, 457 U.S. at 506); see Maine v. Thiboutot, 448

U.S. 1, 3 n.1 (1980). Although the majority of plaintiffs

choose to file in federal court, “increasing numbers of

§ 1983 suits are being filed in state courts.” Sheldon

10

H. Nahmod, Civil Rights & Civil Liberties Litigation:

The Law of Section 1983, § 1:58 (2023 ed.); see Steven

H. Steinglass, Section 1983 Litigation in State and

Federal Courts, § 1:1 (2023 ed.) (“State courts

… emerged in the latter decades of the twentieth

century as the forum of choice for an increasing

number of plaintiffs suing state and local defendants

under § 1983.”).

Plaintiffs have good reasons for filing Section 1983

lawsuits in state court. For instance, plaintiffs

alleging both Section 1983 and state-law claims may

choose to sue in state court to be sure that one court

can resolve all their claims in the same case, or to have

a state court interpret and enforce their state-law

claims. In addition, a variety of procedural and

practical considerations may support litigating in

state court.

A. For plaintiffs alleging a Section 1983 claim and

state-law claims, state court may be the only or most

appropriate option for adjudication of all the claims in

one suit. The Eleventh Amendment bars federal court

jurisdiction over suits seeking to enjoin state officials

from violating state law. See Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 124–25 (1984).

Therefore, a plaintiff who has a Section 1983 claim

and a related state-law claim for injunctive relief

against a state official will not be able to litigate both

claims in federal court. See Cuesnongle v. Ramos, 835

F.2d 1486, 1497–98 (1st Cir. 1987) (stating that

because of Pennhurst, the federal court could not

grant relief on the state-law claims). Such a plaintiff

can either “file the entire action in state court, drop

the state-law claims in order to file in federal court, or

bifurcate the case” so that the state-law claims are in

state court and the federal-law claims are in federal

11

court. A.B.A., Sword & Shield: A Practical Approach

to Section 1983 Litigation, ch. 2.III.C (5th ed. 2021);

see Cuesnongle, 835 F.2d at 1497. The bifurcation

option not only “involve[s] duplication of effort, but

the potential race to the finish may raise preclusion

issues as well.” Barry Friedman, Under the Law of

Federal Jurisdiction: Allocating Cases Between

Federal and State Courts, 104 Colum. L. Rev. 1211,

1268 (2004); cf. Migra v. Warren City Sch. Dist. Bd. of

Educ., 465 U.S. 75, 85 (1984) (holding that a “statecourt judgment … has the same claim preclusive

effect in federal court that the judgment would have

in the … state courts”). Bringing both the Section 1983

claim and the state-law claim together in a single suit

in state court, however, allows the plaintiff to pursue

all her claims in a single case.

In addition, equitable abstention doctrines

“frequently operate to force a § 1983 plaintiff to resort

to a state court.” Nahmod, supra, § 1:58. Under

Younger abstention, see Younger v. Harris, 401 U.S.

37 (1971), federal courts “must refrain from enjoining”

pending state criminal proceedings and “particular

state civil proceedings that are akin to criminal

prosecutions or that implicate a State’s interest in

enforcing the orders and judgments of its courts.”

Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72–73

(2013) (internal citation omitted). Accordingly,

applying Younger abstention, federal courts have

sometimes dismissed Section 1983 suits. See, e.g.,

Citizens for Free Speech, LLC v. Cnty. of Alameda, 953

F.3d 655, 657 (9th Cir. 2020) (dismissing a Section

1983 lawsuit alleging due process violations because

of an ongoing county abatement proceeding); Majors

v. Engelbrecht, 149 F.3d 709, 711 (7th Cir. 1998)

(dismissing a Section 1983 lawsuit alleging equal

12

protection and due process violations because of an

ongoing license-suspension hearing); see also Carroll

v. City of Mt. Clemens, 139 F.3d 1072, 1076 (6th Cir.

1998) (staying a Section 1983 damages action because

of an ongoing state building-code enforcement

proceeding). When a plaintiff pursues a Section 1983

claim in state court, however, Younger abstention is

inapplicable, and dismissal on that basis not a risk.

Likewise, the doctrine of Pullman abstention, see

R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496

(1941), may make the state court a more appropriate

forum. Under that doctrine, “federal courts should

abstain from decision when difficult and unsettled

questions of state law must be resolved before a

substantial federal constitutional question can be

decided.” Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229,

236 (1984); cf. 17A Wright & Miller, Federal Practice

& Procedure, § 4242 (3d ed. 2023 update). “Designed

to avoid federal-court error in deciding state-law

questions antecedent to federal constitutional issues,

the Pullman mechanism remit[s] parties to the state

courts for adjudication of the unsettled state-law

issues.” Arizonans for Off. Eng. v. Arizona, 520 U.S.

43, 76 (1997). Accordingly, Pullman abstention

“entail[s] a full round of litigation in the state court

system before any resumption of proceedings in

federal court.” Id. Applying Pullman abstention,

federal courts have sometimes stayed or dismissed

without prejudice Section 1983 lawsuits. See, e.g.,

Gearing v. City of Half Moon Bay, 54 F.4th 1144, 1146

(9th Cir. 2022) (staying Section 1983 lawsuit alleging

takings claim pending resolution of a state court

eminent-domain action); Nationwide Mut. Ins. Co. v.

Unauthorized Prac. of L. Comm., 283 F.3d 650, 655

(5th Cir. 2002) (dismissing without prejudice Section

13

1983 lawsuit challenging constitutionality of

provision of the Texas State Bar Act where resolution

of Texas law issue would make resolution of federal

constitutional issue unnecessary).

Rather than risk that their Section 1983 claims

will be decided late or not at all, plaintiffs may choose

to file in state court. Indeed, in deciding to abstain,

federal courts have cited the availability of the state

court forum for adjudication of the Section 1983 claim.

See, e.g., Carroll, 139 F.3d at 1075 (upholding district

court’s application of Younger abstention and stating

that the “[plaintiff] may raise all of her claims—state,

federal, and constitutional—under the state court’s

general and concurrent jurisdiction”).

Plaintiffs also may choose to sue in state court

because, aside from the Section 1983 claim, the case

is “otherwise … a state tort action.” Susan N. Herman,

Beyond Parity: Section 1983 and the State Courts, 54

Brook. L. Rev. 1057, 1060 (1989); see Richard Frankel,

Regulating Privatized Government Through § 1983,

76 U. Chi. L. Rev. 1449, 1510 (2009) (stating that

“certain § 1983 actions have a state tort analogue”).

For example, plaintiffs may “add[] a fourth amendment based police misconduct claim to a battery

action when police brutality is alleged, or a due

process claim to a wrongful discharge action when a

government employee has been fired.” Herman,

supra, at 1060; see William E. Ringel, Searches &

Seizures, Arrests & Confessions, § 22:5 & n.3 (2d ed.,

2024 update) (“Virtually any police misconduct

forming the basis of a Fourth Amendment claim may

also form the basis of a tort action in state court

against the offending officials.”) (collecting cases). In

such cases, suing in state court may be preferable

14

because the state court has more familiarity with

state tort law.

B. Plaintiffs also may choose to litigate in state

court for procedural reasons. For example, pleading

standards in some states are less exacting than those

in federal court. See Zachary D. Clopton, Procedural

Retrenchment and the States, 106 Cal. L. Rev. 411, 425

(2018) (finding that “courts in nineteen states have

expressly rejected [the] plausibility pleading”

standard set forth in Ashcroft v. Iqbal, 556 U.S. 662

(2009), and Bell Atlantic Corp. v. Twombly, 550 U.S.

544 (2007)); see, e.g., id. at 426 n.135 (collecting cases

applying state pleading standards to Section 1983

claims); Peak Alarm Co. v. Salt Lake City Corp., 243

P.3d 1221, 1245 (Utah 2010) (stating that under

Utah’s notice pleading standard, “all that is required

of a plaintiff bringing a § 1983 cause of action is to give

the defendants ‘fair notice’ of the claims against

them”). Accordingly, in some states, suits may survive

an early motion to dismiss in state court, even if they

might not satisfy federal pleading standards. Clopton,

supra, at 426. Because the “difference in procedural

provisions may lead to a difference in the ultimate

outcome of the case,” a plaintiff may choose state court

to take advantage of the different procedural rules.

Debra Lyn Bassett, The Forum Game, 84 N.C. L. Rev.

333, 350 (2006).

State standing rules may also support a plaintiff’s

choice to file in state court. Because “the constraints

of Article III do not apply to state courts, … the state

courts are not bound by the limitations of a case or

controversy or other federal rules of justiciability even

when they address issues of federal law.” ASARCO

Inc. v. Kadish, 490 U.S. 605, 617 (1989). Although

some state standing doctrines “roughly resemble the

15

federal justiciability doctrines,” “[o]ther states allow

greater access to their courts than is available under

the federal doctrines.” F. Andrew Hessick, Cases,

Controversies, and Diversity, 109 Nw. U. L. Rev. 57,

65 (2014); see generally Wyatt Sassman, A Survey of

Constitutional Standing in State Courts, 8 Ky. J.

Equine, Agric., & Nat. Res. L. 349 (2015) (surveying

state standing requirements). As the Seventh Circuit

has observed:

While some consider it odd that a state court

might have the authority to hear a federal

constitutional claim in a setting where a federal

court would not, it is clear that Article III’s ‘case

or controversy’ limitations apply only to the

federal courts. … Wisconsin’s doctrines of

standing and ripeness are the business of the

Wisconsin courts, and it is not for us to venture

how the case would there be resolved.

Smith v. Wis. Dep’t of Agric., 23 F.3d 1134, 1142 (7th

Cir. 1994) (internal citations omitted). Thus, for

example, in Urban League of Essex County v.

Township of Mahwah, 370 A.2d 521 (N.J. Super. Ct.

App. Div. 1977), the New Jersey appellate court

reversed the trial court’s dismissal for lack of standing

of a lawsuit alleging a Section 1983 claim, stating that

“New Jersey is not … bound by federal rules of

standing.” Id. at 524.

C. Finally, a plaintiff may have practical reasons

for preferring to litigate a Section 1983 claim in state

court. For instance, the plaintiff’s attorney may be

more familiar with state court practice. See

Steinglass, supra, § 8:2 (noting that “familiarity with

the respective forums, including its personnel and

policies, … can influence choice-of-forum decisions”);

16

Scott Dodson, Beyond Bias in Diversity Jurisdiction,

69 Duke L.J. 267, 296 (2019) (identifying “convenience

considerations,” including “court familiarity,” as one

of “[t]he most important factors” for forum selection).

In addition, the state courthouse may be more

geographically

convenient

than

the

federal

courthouse, especially for plaintiffs and lawyers in

rural areas. See Hon. Karen L. Stevenson & James E.

Fitzgerald, Federal Civil Procedure Before Trial (The

Rutter Group Practice Guide), ch. 2D (Cal. & 9th Cir.

ed., 2024 update) (noting that a “state court case filed

in Eureka would be removed to San Francisco,” which

is approximately 270 miles away).

Plaintiffs also may decide whether to sue in state

or federal court based on differences in how quickly

the respective courts render decisions. “Docket

congestion, and therefore the length of time required

to get to trial, may vary markedly between the federal

and the state court systems.” A.B.A., supra,

ch. 2.III.B. For example, for the 12-month period

ending March 31, 2023, for civil cases filed in the

federal district courts, the median time intervals from

filing to disposition ranged from approximately 0.03

to 68.9 months, 2 and the median time intervals from

filing to trial ranged from approximately 19.0 to 64.3

months. 3 In contrast, Oregon has adopted a standard

providing that 75 percent of its “[g]eneral [c]ivil” cases

––––––––––––––––––––––––

1F

2F

See U.S. Courts, Table C-5, U.S. District Courts–Civil

Federal Judicial Caseload Statistics, https://www.uscourts.gov/

statistics/table/c-5/federal-judicial-caseload-statistics/2023/

03/31.

2

See U.S. Courts, Table T-3, U.S. District Courts–Trials

Federal Judicial Caseload Statistics, https://www.uscourts.gov/

statistics/table/t-3/federal-judicial-caseload-statistics/2023/

03/31.

3

17

should be decided within 180 days. 4 In 2023, the

Oregon trial courts met that standard in

approximately 77 percent of those cases. 5

3F

4F

Plaintiffs also may favor state courts because

federal court litigation can be generally more

expensive. See Stephen N. Subrin & Thomas O. Main,

Braking the Rules: Why State Courts Should Not

Replicate Amendments to the Federal Rules of Civil

Procedure, 67 Case W. Res. L. Rev. 501, 527 (2016)

(“There is substantial evidence that it is considerably

more expensive to try the same type of case in federal

court than in state court.”); Stephen B. Burbank &

Stephen N. Subrin, Litigation and Democracy:

Restoring a Realistic Prospect of Trial, 46 Harv. C.R.C.L. L. Rev. 399, 409 (2011) (stating that “many

observers of current federal practice have asserted

that it is more expensive to litigate the same case in

federal court than state court”).

In sum, Section 1983 provides a cause of action to

remedy violations of federal rights by state actors. A

plaintiff’s choice of state court to adjudicate their

claim should not limit the availability of the Section

1983 remedy.

CONCLUSION

For the foregoing reasons, the decision below

should be reversed.

––––––––––––––––––––––––

Or. Judicial Branch, Time to Disposition Standards for

Oregon

Circuit

Courts

5

(2018),

available

at

https://www.courts.oregon.gov/rules/Pages/other.aspx.

4

5 Or. Judicial Branch, Oregon Goals for Timely Disposition—

Age of Terminated Cases 2023, https://www.courts.oregon.

gov/about/Documents/2023_TimeToDispo.pdf.

18

Respectfully submitted,

DAVID D. COLE

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street NW

Washington, DC 20005

WENDY LIU

Counsel of Record

ALLISON M. ZIEVE

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

wliu@citizen.org

Counsel for Amici Curiae

April 2024