# Curtis R. Blair v. Page Aircraft Maintenance, Inc. > Court of Appeals for the Fifth Circuit · December 1, 1972 · 467 F.2d 815 URL: https://www.frixlaw.com/law-library/cases/9458749 ## Case - **Full name:** Curtis R. BLAIR Et Al., Plaintiffs-Appellees, v. PAGE AIRCRAFT MAINTENANCE, INC., Defendant-Appellant - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** December 1, 1972 - **Citations:** 467 F.2d 815; 81 L.R.R.M. (BNA) 2359; 1972 U.S. App. LEXIS 6473 - **Precedential status:** Published - **Opinion:** Concurring in part by Tuttle - **Judges:** Tuttle, Coleman, Clark - **Cited by:** 33 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9458749 ## Opinion text TUTTLE, Circuit Judge (concurring in part and dissenting in part): While I concur in the judgment to reverse the judgment of the trial court, with deference I must dissent from a portion of the majority rationale and from the direction to dismiss the complaint. Appellants seek relief based upon alleged violations of reemployment rights under 50 U.S.C.A. App. § 459. To this federal substantive right of reemployment, there exists no complementary federal limitations statute. Federal law therefore is silent as to how long a period after an alleged violation of Section 459 is open to a plaintiff to file suit for relief. Under such circumstances, the Supreme Court has held that the federal courts must rely on the limitation period prescribed by the state where the controversy originated. O’Sullivan v. Felix, 233 U.S. 318, 322 , 34 S.Ct. 596, 598 , 58 L.Ed. 980 . The trial court therefore erred in holding that the Alabama statutes of limitations were irrelevant to this controversy. The majority of this court correctly notes that under Code of Alabama Title 7, § 26, a limitation of one year governs the period within which an action under section 459 may be brought, be that action in federal or state court. I cannot agree, however, that a federal court which applies Alabama section 26 to a federal section 459 complaint is bound to adhere to Alabama’s state court policies regarding the tolling of the statute of limitations. In Mizell v. North Broward Hospital District, 5 Cir., 1970, 427 F.2d 468 , we held that “although the federal courts apply a state limitations statute in suits to vindicate a federal right, they look to the federal purpose, policy and intent of Congress as to the objectives of the leg *821 islation in determining whether the pursuit of state remedies tolls this statute.” 427 F.2d 474 . In holding the state statute of limitations irrelevant where a federal right was the issue, the District Court did not reach the issue of how to toll the Alabama limitations statute. While the majority herein does reach that latter question, it ignores Mizell, and I believe incorrectly states the law to be applied, and summarily dismissed a claim meriting serious consideration. The standard established by Mizell requires that federal courts look to the policy of the Federal substantive statute to determine whether or not to toll the state limitations statute in a particular instance. Yet the court here states that “delays by counsel do not toll limitations. To hold otherwise is to defeat the very purpose of limitation statutes.” Since the purpose of that limitation statute is “to force a litigant to get moving, and to get moving fast,” Ded-mon v. Falls Products Incorporated, 5 Cir. 1962, 299 F.2d 173, 178 , the majority conclude that the federal statutory right is defeated by counsel’s delay. Mizell is overruled sub silentio by failing to consider its application to the facts of the case. The purpose of the state limitational statute rather than the purpose of the federal substantive statute is given as to touchstone for the decision whether or not to toll the limitation period. And the district court is ordered to dismiss summarily appellant’s complaint. What is the nature of the alleged “delays by counsel,” which the majority, in effect, say “do not toll limitations?” What is the effect of delays by counsel upon the statutory scheme of 50 U.S.C. A. App. § 459? The veteran files a complaint with the Secretary of Labor, whose responsibility it is to “render aid in the replacement in their former positions of persons who have satisfactorily completed any period of active duty in the armed forces.” Section 459(h). The facts must be gathered; the possibility of a settlement explored; the Justice Department consulted; the United States Attorney advised; and ultimately, the suit authorized. The majority penalize the veteran for this inevitable delay occurring after his complaint is filed with the Labor Department but before the Government subsequently files suit against the employer. This would disembowel the Act. It would render subsection (h) a dead letter, forcing the veteran to secure a private attorney ab initio to sue on his behalf, circumventing the informal but necessarily time-consuming efforts of the Secretary of Labor. Since the tolling rule announced here today would undermine the federal substantive right of the appellants and reverse the rule of law which this court enunciated only two years ago in Mizell, I respectfully dissent from this aspect of the majority decision. I think the case should be remanded to the trial court to consider the application of the tolling principle enunciated in Mizell. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9458749. Public record. Not legal advice.