Board of Regents v. Tomanio, 446 U.S. 478 (1980)

Author: Justice Brennan

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Board of Regents v. Tomanio, 446 U.S. 478 (1980)

MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, dissenting.

I cannot agree with the Court that respondent’s federal action is time-barred. In my view, when applied to these facts, the New York statute of limitations and tolling rules are "inconsistent with the Constitution and laws of the United States," and thus should not be "extended to . . . govern" respondent’s suit. 42 U.S.C. § 1988.

While the precise content of New York’s statute of limitations and tolling rules is not crucial to my analysis, I think it appropriate to note that the Court’s conclusion that respondent’s action would be time-barred under state law is far from persuasive. The Court relies heavily upon the absence of any provision that expressly tolls the statute of limitations "during the period in which a litigant pursues a related, but independent cause of action," ante at 486.{1} I would not attach controlling significance to the absence of particular statutory language. Nor would I conclude on the basis of that absence that New York had consciously determined

that the policies of repose underlying the statute of limitations should not be displaced by whatever advantages inure, whether to the plaintiff, or the system, in a scheme which encourages the litigation of one cause of action prior to another.

Ante at 487. Legislative silence is simply not that communicative.{2} Indeed, there may be no New York rule that actually deals with the present situation. That State has a unitary court system, and, in consequence, its judges and legislators are unlikely to have focussed upon the filing in two different court systems of two different suits dealing with the same transaction or occurrence. Further, the situation upon which they probably have focussed -- the filing in a single system of two consecutive suits -- would not really be analogous, because there would be no conceivable reason for separating the actions. Moreover, even in that case, it is not clear that state lawmakers would expect to derail the second action by applying the statute of limitations. On the contrary, the doctrine of res judicata would seem a more probable reason for dismissal.{3} In sum, I think the precise content of state law, when applied to a case such as the present one, is sufficiently opaque to render any supposition as to what state policies are at stake extremely speculative.{4}

More broadly, I would not find respondent’s § 1983 action time-barred even were I confident that application of the New York rules would produce that result. Monroe v Pape, 365 U.S. 167, 183 (1961), settled that the plaintiff in a § 1983 case need not resort to state judicial remedies prior to filing a federal suit. There are, however, circumstances in which this Court has decided that a federal determination may be delayed pending resolution of certain state law issues, see Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941). Beyond that, even in cases not technically within the abstention doctrine, advantages may be realized from permitting the state courts to decide claims that state administrative determinations were arbitrary, capricious, or otherwise contrary to state law. Accordingly, I can conceive of situations in which a plaintiff in a case like the present one might resort initially to state courts either under the view that he would be required to do so by the abstention doctrine or because doing so, while not compulsory, would be a more efficacious way of resolving his claim. Either reason strikes me as entirely legitimate.{5} Abstention decisions are presumably there to be read by plaintiffs as well as district courts, and permitting plaintiffs to act upon them might spare the federal courts some unnecessary work. More generally, where the plaintiff voluntarily concludes that it is worth the time and money, resort to state judicial review under state law would not be inconsistent with Monroe v. Pape, supra, and could both reduce strains on federal-state relations and ease the task facing the district courts that must eventually resolve those cases not settled in state proceedings.

While I believe the foregoing benefits may be substantial, I think it vital to ensure that they are not obtained at the expense of the plaintiff’s right ultimately to try his federal claims in a federal forum. Thus, while I recognize that a plaintiff may be bound by a deliberate choice to present both state and federal claims to the state court, I would not be too quick to find that such a choice has been made. In the present case, there is no indication that respondent had any intention of relinquishing her right to a federal forum, and I would eschew any course that, in effect, forces her to do so. In consequence, on these facts I would think it inconsistent with federal law and the Constitution to enforce state timing or res judicata rules that close the door of the federal courthouse.

In the abstention context, England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964), sets forth a procedure for preserving a plaintiff’s right to a federal forum for his federal claims while giving effect to the concerns and policies underlying Railroad Comm’n v. Pullman Co., supra. Under that procedure, a plaintiff remitted to state court may file a formal reservation in that court preserving his federal claims. If he does so, he can litigate those claims on his return to federal court. If he fails to do so, he risks being held to have submitted all his claims to the state court. It seems to me that the present case is, in many respects, simply a variation of the basic England situation. Accordingly, I believe that a similar reservation procedure would be appropriate here. Permitting a plaintiff to reserve his federal claims would make the choice to litigate state claims in state court a palatable one; and where that choice is exercised, the parties and system alike may benefit. Further, requiring that plaintiffs who want to make such a reservation do so expressly would supply a relatively simple means of preventing the relitigation of claims submitted to and decided by state courts.{6}

While I would impose a reservation requirement on cases like this for the future, I would not be inclined to do so on the present facts, for reasons akin to those that led us to make England itself prospective. 375 U.S. at 421-423. Specifically, there is no reason why respondent should have anticipated that she would be required to reserve her federal questions. On the contrary, I think she could reasonably have assumed that, so long as her federal claims were not raised or decided in state court, she could try them in a subsequent § 1983 action.{7} I would give effect to that assumption, and make the reservation requirement wholly prospective.{8}

Because I think the importation of either the state statute of limitations or its estoppel by judgment rule would be inconsistent with federal law and the Constitution, I would reach the merits. The courts below were of the view that the licensing scheme in general and the waiver provisions in particular conferred on respondent some minimal property right. I see no reason to second-guess that determination.{9} As a result, it is axiomatic that some procedural protections are required by the Due Process Clause. The extent of those protections is a difficult question, and I think the Court of Appeals may have gone too far when it ordered an adjudicative hearing. It does, however, seem quite clear that, at minimum, respondent was entitled to a statement of the reasons for her rejection. Further, I cannot agree with MR. JUSTICE STEVENS that this requirement was satisfied by the statement given by the Board in its answer to respondent’s original complaint. Respondent’s right was to receive a statement of reasons when a waiver was denied, not upon her resort to state judicial remedies.{10} As a result, I would affirm the Court of Appeals insofar as it held that respondent was entitled as a matter of federal constitutional law to some additional procedures, but would reverse insofar as that court held that she was entitled to a full adjudicative hearing. Accordingly, I dissent.

1. The Court also makes reference to respondent’s failure to "maintain that any provision of New York law operated to toll the statute of limitations." Ante at 487, n. 8.

2. Cf. Powell, The Still Small Voice of the Commerce Clause, in 3 Selected Essays on Constitutional Law 931, 932 (1938).

3. See Winters v. Lavine, 574 F.2d 46, 56 (CA2 1978) (citing New York cases).

4. If the Court is persuaded that state law should govern, I agree with MR. JUSTICE STEVENS that it would be appropriate to seek the advice of the Court of Appeals as to the precise content of the state rule as applied to facts such as these. Ante at 493, n. 3.

5. In this regard, too, I am in agreement with my Brother STEVENS. See ante at 493.

6. Curiously, the Court’s decision regarding the New York statute of limitations could have a broadly parallel effect. As I understand it, the Court would simply require plaintiffs either to lodge a federal complaint in federal court before the limitations period expires or to obtain an order from the state court tolling the running of that period. Either step would put the State on notice that a federal constitutional challenge loomed, cf. Government Employees v. Windsor, 353 U.S. 364 (1957), and, assuming that the Court would not give effect to the state res judicata rules, either would ultimately permit plaintiffs in future cases to raise their federal claims in federal forums. Thus, while I am not persuaded by the Court’s reasoning, and while I think the result in this particular case anomalous, the overall effect of the Court’s rule may be satisfactory.

7. In 1970, the Court of Appeals for the Fifth Circuit concluded that a state statute of limitations would be tolled in such a situation. Mizell v. North Broward Hospital District, 427 F.2d 468, 473-474. The Court of Appeals for the Second Circuit apparently had not ruled on this precise issue at the time of respondent’s suit, although it had held that New York’s res judicata and collateral estoppel rules would not bar a federal civil rights suit dealing with issues not actually litigated in a prior state court suit, Ornstein v. Regan, 574 F.2d 115 (1978); Lombard v. Board of Education, 502 F.2d 631, 635-637 (1974).

8. Even were the England requirement fully applicable, respondent’s failure to make an express reservation might not be dispositive on these facts. Normally the reservation rule will serve two functions -- it will force the plaintiff to declare his intentions, and thus keep him from getting two chances to litigate a single claim, and it will put the parties and the state court on notice that there lurks a constitutional issue. Here, the first purpose is not implicated, because respondent’s federal claims were not litigated in state court. And while it may be appropriate to hold that a plaintiff who fails to reserve federal claims will be bound by a state court’s actual determination of those claims, the proper result where a failure to reserve has led only to silence on the federal issue is less obvious. Government Employees v. Windsor, supra, for example, merely concluded that a state law determination made without warning or discussion of related constitutional claims was inadequate, and ordered a remand to give the state courts an opportunity to construe their statute in a different manner. 353 U.S. at 366. Neither party has requested such a disposition here, and I am not convinced that one would be appropriate. But it does seem that the consequence of failure to reserve in the present context need not be a complete bar to pursuit of respondent’s federal claims in federal court.

9. In the wake of Bishop v. Wood, 426 U.S. 341, 347 (1976), it is clear that such second-guessing will rarely, if ever, be appropriate.

10. Cf. Home Telephone & Telegraph Co. v. Los Angeles, 227 U.S. 278 (1913).


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Chicago: Brennan, "Brennan, J., Dissenting," Board of Regents v. Tomanio, 446 U.S. 478 (1980) in 446 U.S. 478 446 U.S. 495–446 U.S. 499. Original Sources, accessed October 4, 2022,

MLA: Brennan. "Brennan, J., Dissenting." Board of Regents v. Tomanio, 446 U.S. 478 (1980), in 446 U.S. 478, pp. 446 U.S. 495–446 U.S. 499. Original Sources. 4 Oct. 2022.

Harvard: Brennan, 'Brennan, J., Dissenting' in Board of Regents v. Tomanio, 446 U.S. 478 (1980). cited in 1980, 446 U.S. 478, pp.446 U.S. 495–446 U.S. 499. Original Sources, retrieved 4 October 2022, from