Archive for April 2024
An Updated Section 1983 Primer (6): Claim and Issue Preclusion
In honor of the 40th Annual Conference on Section 1983, which was recently held in-person at Chicago-Kent College of Law on April 18-19, 2024, I have been updating my popular “Primer” series on section 1983.
Overview of Preclusion
This post addresses the important practical topic of claim preclusion (res judicata, which concerns claims that were or could have been raised), and issue preclusion (collateral estoppel, which concerns issues that were raised and adjudicated) in section 1983 cases. Preclusion concerns arise in section 1983 federal court litigation when there is a prior final state judicial or administrative proceeding that involved the same parties (or their privies) and implicated (or could have implicated) the same issues.
To what extent may those claims or issues be relitigated in a subsequent section 1983 federal court proceeding? As it turns out, the answer in each case depends, as a matter of federal law, on the forum state’s preclusion law.
1. The Relevance of 28 U.S.C. section 1738
Like statute of limitations issues in section 1983 litigation, preclusion issues involve a mixture of federal and state law. This is because 28 U.S.C. section 1738 requires federal courts to give the same effect to prior state judicial decisions as would the courts of the forum state. Section 1738 is based on the Constitution’s Full Faith and Credit Clause, Art. IV, section 1.
2. The Preclusive Effect of Prior State Criminal Proceedings
(a) Suppose that a defendant in a criminal case makes a Fourth Amendment motion to suppress evidence, which the state court denies, and the defendant is acquitted anyway. The defendant then becomes a section 1983 plaintiff seeking damages against the law enforcement defendants for violating his Fourth Amendment rights. What is the preclusive effect, if any, of that state court decision on the plaintiff’s section 1983 Fourth Amendment claim?
In Allen v. McCurry, 449 U.S. 90 (1980), the seminal section 1983 preclusion case, the Supreme Court declared that section 1738 governed, and that Missouri collateral estoppel law applied to determine the preclusive effect of the state court’s Fourth Amendment decision denying the motion to suppress. I should also note that this would similarly be the case if the state trial court had instead granted the Fourth Amendment-based motion to suppress and the plaintiff sought to use that ruling offensively against the defendants.
(b) What is the preclusive effect, if any, of a criminal defendant’s guilty plea in state court on his subsequent section 1983 Fourth Amendment damages action? In Haring v. Prosise, 462 U.S. 306 (1983), the Court held that the preclusion law of the forum state–here, Virginia–applied, and under that law there was no preclusive effect. In addition, the Court declared that the plaintiff had not waived his Fourth Amendment claim just by pleading guilty.
3. The Preclusive Effect of Prior State Civil Proceedings
Not surprisingly, section 1738 also governs the preclusive effect of a prior state civil proceeding on a subsequent section 1983 federal court proceeding.
(a) Suppose that a discharged employee files a breach of contract action in state court and either wins or loses (it doesn’t matter for present purposes). That employee then files a section 1983 federal court damages action against the same defendants alleging that she was discharged because of her sex or or race. The forum state’s preclusion law would apply, with the result (in most states) that claim preclusion, or res judicata, would altogether bar the section 1983 damages action, because the plaintiff could have raised the section 1983 claim in state court initially. This is the clear import of Migra v. Warren City School District, 465 U.S. 75 (1984).
(b) Suppose now that the same discharged employee first challenged her firing under state law claim in an administrative proceeding, lost there on the ground that the discharge was not impermissibly motivated, and then also lost on judicial appeal from this decision because there was substantial evidence to support the agency’s decision. The employee then files a section 1983 damages action, again alleging a discharge because of her sex or race. May she proceed with her section 1983 damages claim in federal court?
According to the Supreme Court in Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982), the forum state’s preclusion law applies to determine the collateral estoppel effect of the agency determination, upheld on judicial review, that her discharge was not impermissibly motivated. The result (in most states) would be that the federal claim is thereby precluded.
(c) What of a prior state administrative proceeding that has not been judicially reviewed? Does the forum state’s preclusion law similarly apply? After all, section 1738 applies on its face only to prior state court judicial proceedings. Nevertheless, as the Supreme Court, in University of Tennessee v. Elliott, 478 U.S. 788 (1986), held as a matter of federal common law the forum state’s preclusion law applies to administrative findings of fact despite the technical non-applicability of section 1738.
(d) Finally, what of prior unreviewed state arbitration proceedings? In McDonald v. City of West Branch, 466 U.S. 284 (1984), the Supreme Court rejected any preclusive effect of arbitral findings of fact on subsequent section 1983 federal court claims. The Court so ruled as a matter of federal law.
Comment
It should be obvious that the preclusion law of section 1983 litigation varies from state to state and is both quite complicated and very important as a practical matter. But even though there is no national uniformity on preclusion law and section 1983, it is not unfair to expect attorneys to know the preclusion law of their forum state.
I cover this topic much more comprehensively in Chapter 9 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2023-24 ed.)(West/Westlaw).
An Updated Section 1983 Primer (5): Statutes of Limitation, Accrual and Tolling
In honor of the 40th Annual Conference on Section 1983, to be held in-person at Chicago-Kent College of Law on April 18-19, 2024, I have been updating my popular “Primer” series on section 1983.
Below is the fifth–and one of the most widely viewed–of these posts. I hope you find it to be informative.
Introduction
This is the fifth of my section 1983 primers. This post addresses the important, and threshold, question of statutes of limitations, accrual and tolling in section 1983 cases.
The Basics
Because section 1983 does not have its own statute of limitations, it is “deficient” within the meaning of 42 U.S.C. section 1988. Under the provisions of that statute, where federal law is deficient, federal courts are to apply the relevant law of the forum state, unless the relevant law of the forum state is inconsistent with federal law or policy or discriminates against federal claims.
As a consequence of section 1988, statutes of limitations issues arising in section 1983 cases constitute an unusual amalgam of federal and state law regarding the choice of the proper limitations period, accrual and tolling.
Choosing the proper limitations period
The leading case is Wilson v. Garcia, 471 U.S. 261 (1985), which held that the forum state’s personal injury statute of limitations governs. This means that there is no national uniformity.
If the forum state has more than one possibly applicable personal injury statute of limitations, then the state’s residual or general statute of limitations governs. Owens v. Okure, 488 U.S. 235 (1989).
Accrual
When a section 1983 claim accrues–when all of the elements of the claim are present–is a matter of federal law. The governing accrual rule for section 1983 is the medical malpractice discovery accrual rule, meaning that the statute of limitations for a section 1983 claim begins to run when the plaintiff knew or had reason to know of the injury. See United States v. Kubrick, 444 U.S. 111 (1979).
In the employment setting, it is the date of the challenged conduct, such as the alleged racial or sex discrimination, that begins the running of the applicable limitations period, not necessarily when the employee is no longer employed. Delaware State College v. Ricks, 449 U.S. 250 (1980).
There is a special, and quite complicated, accrual rule, set out in Heck v. Humphrey, 512 U.S. 477 (1994), that applies where the plaintiff has a prior conviction whose validity might be implicated by a successful section 1983 damages action. In such cases, the section 1983 claim does not accrue until the underlying conviction is overturned or vacated. See also the important 2007 decision in Wallace v. Kato, 549 U.S. 384 (2007), dealing with Heck, accrual and section 1983 false arrest/imprisonment claims.
More recently, in McDonough v. Smith, 139 S. Ct. 2149 (2019), the Supreme Court ruled that a section 1983 due process claim of fabrication of evidence claim resulting in criminal prosecution and trial accrues when the plaintiff is acquitted on all charges. And in 2022, the Supreme Court held that a plaintiff’s section 1983 Fourth Amendment malicious prosecution claim accrues when there is a favorable termination of the criminal charges against the plaintiff, even if that termination does not affirmatively demonstrate the plaintiff’s innocence. Thompson v. Clark, 142 S. Ct. 1332 (2022).
Tolling
In contrast to accrual, whether a section 1983 claim is tolled is a matter of state law. The Court so held in Board of Regents v. Tomanio, 446 U.S. 478 (1980), with respect to individual actions, and in Chardon v. Fumero Soto, 462 U.S. 650 (1983), with respect to class actions, a case that I argued in the Supreme Court on behalf of the victorious plaintiffs.
A state savings statute is a particular kind of tolling statute that stops the running of the applicable limitations period for claims timely filed but subsequently dismissed for improper venue, for want of jurisdiction or for other reasons not related to the merits.
Comment
There is so much about statutes of limitations that cannot even be hinted at here. For a comprehensive discussion of this technical subject, see NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 ch. 9 (2023-24 edition)(CIVLIBLIT on Westlaw).
Know Your Constitution (4)(Updated): Equal Protection
(Author’s note. Over ten years ago I published a series of posts on different constitutional topics entitled “Know Your Constitution.” I believe that this series, intended for the general public, law students and attorneys, merits re-publishing in these perilous and divisive times when constitutional norms are being challenged at every level. So that’s what I’m doing, one post at a time, with revisions and updates where appropriate.)
This is the fourth in a series of posts about the Constitution that is intended for a general audience. Previous posts introduced the Constitution and then rebutted some commonly held myths about the Constitution.
Background
The equal protection clause of the Fourteenth Amendment prohibits states and local governments from denying persons the equal protection of the laws: similarly situated persons must be treated in the same way, which is a kind of justice principle. The equal protection clause also applies to the federal government through the Fifth Amendment‘s due process clause.
The equal protection clause was originally intended to protect newly freed blacks from being treated disadvantageously because of the their race. However, it is written in broader terms and covers discrimination against persons in general. But this does not mean that whenever government discriminates or classifies, it violates equal protection. Governments could not function if they could not draw lines or classify when they legislate.
The Four Equal Protection Tests
Over the years, the Supreme Court has developed four different tests that it uses, depending on the kind of government discrimination or classification involved.
Strict Scrutiny. When government discriminates or classifies on grounds of race or ethnic origin, the Court uses “strict scrutiny.” This means that in order for the challenged discrimination to be upheld, the government must overcome a heavy burden. It must show that the discrimination promotes a compelling government interest and is narrowly tailored to achieve that interest. Under this test, racial classifications that disadvantage racial minorities never pass strict scrutiny, while those that advantaged racial minorities and disadvantaged a racial majority (as in affirmative action) previously survived strict scrutiny, but after the Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 143 S. Ct. 2141 (2023), this is no longer the case for college admissions.
Intermediate Level Scrutiny. When government discriminates or classifies on the basis of sex or gender, the Court uses “intermediate level scrutiny.” This is not as burdensome on government as strict scrutiny but it does have “bite”: Here, the government must show that the discrimination promotes an important government interest and is substantially related to achieving that interest. In these cases, the Court is sensitive to the improper use of sexual stereotypes.
Rational Basis Review. When government discriminates or classifies in connection with economic regulation and business, then the Court uses “rational basis review.” This kind of equal protection review is very deferential to government. When applied, rational basis review almost invariably results in a determination that the government classification is constitutional.
Actual Purpose Review. This kind of review is a relatively recent arrival on the scene. The Supreme Court announced several decades ago that the equal protection clause prohibits government from discriminating against persons just because of who they are. The Court used this principle some years ago, in Romer v. Evans, to strike down a Colorado constitutional amendment that disadvantaged homosexuals: it found that the amendment was actually motivated by animus toward them.
Thus far, actual purpose review has been used sparingly by the Supreme Court. However, it played a role in Obergefell v. Hodges, 576 U.S. 644 (2015), the blockbuster same-sex marriage decision.
An Updated Section 1983 Primer (4): Cause in Fact and the Mt. Healthy Burden-Shift Rule
In honor of the 40th Annual Conference on Section 1983, to be held in-person at Chicago-Kent College of Law on April 18-19, 2024, I have been updating my popular “Primer” series on section 1983.
Below is the fourth of these posts. I hope you find it to be informative.
Introduction
As in ordinary tort law, a person who is sued under section 1983 for damages must be shown to be responsible in order to held liable. In other words, that person must have caused the plaintiff’s constitutional deprivation. But in certain section 1983 cases involving impermissible motivation, such as public employee equal protection and First Amendment cases, there are complications arising out of the burden-shift rule of Mt. Healthy Bd. of Education v. Doyle, 429 U.S. 274 (1977).
Typical Fact Pattern
Suppose a public employee is discharged and believes the discharge was impermissibly motivated either because of race (equal protection) or because what he or she said (First Amendment). It turns out that even if the plaintiff can prove this, he or she will not necessarily win on the merits and recover damages because of the Mt. Healthy burden-shift rule.
How the Mt. Healthy Burden-Shift Rule Works
Under Mt. Healthy, (1) the plaintiff has the burden of proving by a preponderance of the evidence that the impermissible motive was a substantial factor (not the but-for cause or the sole cause) for the discharge. Once the plaintiff does this, the plaintiff has made out a prima facie case and will prevail on the merits (2) unless the defendant can prove by a preponderance of the evidence that there was a permissible factor–such as insubordination, incompetence or the like–that also played a role in the discharge and–here’s the key– (3) the plaintiff would have been discharged anyway even in the absence of the impermissible motive.
This is the Mt. Healthy burden-shift that, if carried, means that the defendant is not liable on the merits: no constitutional violation, no damages and no attorney’s fees. It is a powerful affirmative defense.
The Scope of the Mt. Healthy Burden-Shift Rule
The Mt. Healthy burden-shift applies in mixed-motive cases. It is inapplicable where the plaintiff proves by a preponderance of the evidence that the impermissible motive was the sole cause for the discharge.
Significantly, it is also inapplicable in after-acquired evidence cases. Suppose, for example, that in the course of section 1983 litigation involving allegations of unconstitutional discharge, the defendant discovers that the plaintiff lied on his or her employment application and can demonstrate that the plaintiff would therefore not have been hired in the first place. This is not a Mt. Healthy burden-shift case because it is not a mixed-motive case. The defendant’s liability for the constitutional deprivation is unaffected.
This is not to say, though, that the defendant’s after-acquired evidence is irrelevant: it goes to the extent of recoverable damages. The defendant is liable for the damages–lost pay, for example–resulting from the unconstitutional discharge up to the date of discovery of this evidence but not for any such damages thereafter. The Supreme Court made this clear in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995).
Comment
Note that the generally applicable cause in fact rule in section 1983 cases and most other civil rights cases remains the but-for rule. The Supreme Court made this clear in Comcast Corp. v. National Ass’n of African American-Ownded Media, 139 S. Ct. 2693 (2020), a section 1981 case.
See generally on cause in fact, sections 3:110-3:114 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/Westlaw).
Nahmod Law 