Chardon v. Fumero Soto

*663 Justice Rehnquist,

with whom Justice White and Justice Powell join,

dissenting.

Title 42 U. S. C. § 1988 embodies a congressional determination that the laws of the several States provide the most suitable procedural and remedial rules for application in actions brought under the federal civil rights laws. In the words of the statute, “in all cases [brought under the federal civil rights laws] where [federal laws] are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held . . . shall be extended to and govern the said courts in the trial and disposition of the cause . . . .”

We frequently have recognized “the generally interstitial character of federal law,” Richards v. United States, 369 U. S. 1, 7 (1962). Because of this, federal courts frequently must look to “the common law, as modified and changed by the constitution and statutes of the State wherein the court” is situated. If, however, there is federal law “adapted to the object” of the civil rights laws, § 1988 commands that federal courts apply that law in § 1983 actions.

The question in this case is whether there is any federal rule of law applicable to the tolling of limitations periods during the pendency of a class action brought under Federal Rule of Civil Procedure 23. If there is, then we must depart from the general rule of reference to state law in actions brought under the civil rights laws. This inquiry turns principally on the meaning of our decision in American Pipe & Construction Co. v. Utah, 414 U. S. 538 (1974). While the Court adopts a plausible, albeit narrow, reading of the opinion in that case, I believe the opinion is more fairly read in a somewhat broader manner. Adopting this construction, I conclude that the decision recognizes a federal rule of tolling applicable to class actions brought under Federal Rule of *664 Civil Procedure 23, and that this rule is made applicable by § 1988 to claims brought under § 1983.

In American Pipe the Court rejected the claim that antitrust claims brought by various Utah .public agencies and municipalities was barred by the 4-year limitations period of §4B of the Clayton Act, reasoning that the running of this period had been tolled on three occasions. As to two of these occasions, involving periods during which federal litigation was pending, the Court’s reasoning simply applied § 5(b) of the Clayton Act. Section 5(b) explicitly addressed the effect of pending federal litigation, stating unambiguously that “[w]henever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, . . . the running of the statute of limitations in respect to every private right of action arising under said laws . . . shall be suspended during the pend-ency thereof and for one year thereafter.” 38 Stat. 731 , as amended, 15 U. S. C. § 16 (i). The first two periods in which American Pipe held that § 4B had been tolled followed simply from a straightforward application of § 5(b).

As to the third period in which the limitations period was found to be tolled, however, the Clayton Act was utterly silent. The period in question was one in which a class action brought by the State of Utah had been pending. The question in American Pipe was whether the pendency of this class action warranted tolling of the Clayton Act’s limitations period as to unnamed plaintiffs in the class. As noted previously, the Clayton Act provided not the slightest guidance on the question whether the pendency of the class action should have had a tolling effect.

Despite the silence of the Clayton Act, the Court concluded that § 4B had been tolled. Since the Clayton Act plainly did not address the question before it, and since the Court made no reference at all to state law, the source of the tolling rule applied by the Court was necessarily Rule 23. Any doubt as to this fact is removed by the Court’s lengthy discussion of *665 the history, purposes, and intent of the Rule. Likewise, our subsequent decisions have reflected this understanding of the basis for the Court’s decision in American Pipe. See, e. g., Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 467, n. 12 (1975) (“In the light of the history of Fed. Rule Civ. Proc. 23 and the purposes of litigatory efficiency served by class actions, we concluded that the prior filing had a tolling effect”).

In interpreting Rule 23 to contain a rule that, during the pendency of a class action, underlying statutes of limitations would be tolled as to individual class members, the Court also addressed the more general question of what effect a decision that the class action could not properly be maintained would have on the tolling of the limitations period. Again, reflecting the fact that it was fashioning a general federal tolling rule grounded on Rule 23, the Court stated:

“We are convinced that the rule most consistent with federal class action procedure must be that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” 414 U. S., at 554 (emphasis added).

There can be little question but that the Court fashioned a rule “consistent with federal class action procedure” requiring suspension of periods of limitation during the pendency of class actions. To be sure, the Court alluded to the fact that § 5(b) of the Clayton Act provided for “suspension” of the tolling period, rather than some other effect, but the Court rightly did not rely solely on this provision — which admittedly was entirely inapplicable in the case before it — in fashioning its general rule of tolling under Rule 23. Rather, it spoke more broadly, stating that the “concept” in § 5(b) requires the conclusion that a pending class action “suspendís] the running of the limitation period.” Id., at 561 (emphasis *666 added). Since there is a federal rule of tolling in the special area of class actions, this rule should be applied.

The Court today studiously ignores the foregoing statements from American Pipe, as well as the clear inapplicability of § 5(b) to the question decided in American Pipe. Instead, it offers the argument that “[s]ince suspension was adequate [in American Pipe] to preserve all of the plaintiffs’ claims . . . there was no need to consider whether any different rule might have been appropriate.” Ante, at 660. The more orthodox inquiry, however, would seem to be what the Court actually decided then, not what we now think it needed to decide. And, as the discussion above plainly demonstrates, American Pipe concluded that Rule 23 contains a tolling rule that suspends (but does nothing more) the running of limitations periods during the pendency of class actions. 1

This determination that the federal rule under Rule 23 is that the pendency of a class action simply suspends the running of a statute of limitations is not the least bit unusual. Indeed, in many areas of federal law mere suspension is the rule. 2 Moreover, in areas aside from class actions, the *667 Court has recognized that federal tolling rules apply to state statutes of limitations. See, e. g., Holmberg v. Armbrecht, 327 U. S. 392 (1946) (general federal principles of equity must be applied by federal courts in actions involving federal claims, even where state statutes of limitations are borrowed).

The Court is apparently well aware that by rejecting the claim that Rule 23 reflects a uniform federal tolling rule it encourages needless litigation regarding what state tolling rule applies. Indeed, in this case the Court of Appeals frankly admitted that “there is no discernible state rule” to be applied. Fernandez v. Chardon, 681 F. 2d 42, 50 (CA1 1982). In other situations, more than one state rule may seem applicable. It is scarcely a desirable state of affairs for federal courts to spend their time deciding how state courts might decide state tolling rules operate. These concerns are particularly acute owing to the fact that the question at issue is what statute of limitations ought to be applied. Few areas of the law stand in greater need of firmly defined, easily applied rules than does the subject of periods of limitations. A single, uniform federal rule of tolling would provide desirable certainty to both plaintiffs and defendants in § 1983 class actions.

Finally, it is useful to consider the application of the Court’s analysis in a situation not far removed from the present case. If the law of a particular State was that the pendency of a class action did not toll the statute of limitations as to unnamed class members, there seems little question but that the federal rule of American Pipe would nonetheless be applicable. Having tolled the running of the *668 applicable state statute of limitations, the federal court would be required to decide what effect denial of class certification would have. The logical source of law, of course, would be the general federal rule, expressed in American Pipe and applied to toll the running of the period in the first place. The Court, however, would apparently have the trial judge look to state law. Such a course would obviously be more than a little ironic — the inquiry would appear to be, if state law did have a class-action tolling rule, which it does not, what would state law say with respect to one aspect of that rule’s effect? Such an inquiry would be more appropriate in Alice in Wonderland than as a serious judicial undertaking.

Because the Court partially rejects a rule of law that American Pipe plainly set forth, because it reaches a result that can only encourage needless litigation and uncertainty, and because its analysis leads to anomalous results, I respectfully dissent.

The Court correctly recognizes that Board of Regents v. Tomanio, 446 U. S. 478 (1980), is distinguishable. That case did not involve a class action, and thus the Court had no occasion to consider whether Rule 23 creates a federal tolling rule, or the character of that rule. Hence, there was “a void ... in federal statutory law,” id., at 483 , and state law was called upon to fill the void. Owing to American Pipe and its interpretation of Rule 28, there is no comparable void in this case, and federal law is therefore applicable.

See, e.g., 5 U. S. C. § 8122 (d) (limitations period does not “run against an incompetent individual while he is incompetent”); 19 U. S. C. § 1621 (time in which violator is outside Nation “shall not be reckoned within this period of limitation”); 22 U. S. C. § 817 (c) (suspension of limitations periods in malpractice actions by certain federal employees during pendency of specified suits); 28 U. S. C. § 1498 (copyright claims by Government employees suspended during certain periods); 29 U. S. C. § 255 (d) (limitations period of Portal-to-Portal Pay Act “shall be deemed suspended” in certain instances); 45 U. S. C. § 56 (period of limitations under Federal Employ *667 ers’ Liability Act; Burnett v. New York Central R. Co., 380 U. S. 424 (1965)); 46 U. S. C. § 745 (limitations period suspended during pendency of administrative actions; see Northern Metal Co. v. United States, 350 F. 2d 833 (CA3 1965); Kinman v. United States, 139 F. Supp. 925 (ND Cal. 1956)); 50 U. S. C. App. § 33 (in computing expired time “there shall be excluded” time when specified actions were pending). Cf. Hanger v. Abbott, 6 Wall. 532 (1868) (suspension of state statute of limitations).