Opposition Brief — Jarius Brown, Petitioner v. Javarrea Pouncy, et al.
Supreme Court briefAug 20, 2024
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No. 23-1332
In the Supreme Court of the United States
_____________
JARIUS BROWN,
Petitioner,
v.
JAVARREA POUNCY, ET AL.,
Respondents.
_____________
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
_____________
BRIEF IN OPPOSITION
____________
James Ashby Davis
Counsel of Record
James R. Sterritt
COOK, YANCEY, KING &
GALLOWAY, APLC
333 Texas St. Suite 1700
Shreveport, LA 71101
(318) 227-7826
ashby.davis@cookyancey.com
Counsel for Respondent Javarrea Pouncy
i
QUESTIONS PRESENTED
Federal law does not provide a statute of
limitations for claims under 42 U.S.C. § 1983. In
Wilson v. Garcia, 471 U.S. 261 (1985) and Owens v.
Okure, 488 U.S. 235 (1989), this Court held that,
under 42 U.S.C. § 1988, the forum state’s general or
residual statute of limitations for personal injury tort
claims applies to all Section 1983 claims. In Louisiana,
for claims arising between 1825 and July 1, 2024, that
period was one year.
Shortly after Owens, Congress passed 28 U.S.C.
§ 1658, creating a four-year limitations period for civil
actions that “arise under an Act of Congress enacted”
after December 1, 1990. This statute “alleviat[ed] the
uncertainty inherent in the practice of borrowing state
statutes of limitations” for “new claims” while “at the
same time protecting settled interests” by “leav[ing] in
place the ‘borrowed’ limitations periods for preexisting causes of action, with respect to which the
difficult work already has been done.” Jones v. R.R.
Donnelley & Sons Co., 541 U.S. 369, 382 (2004).
Raising questions he did not raise below, Petitioner
Jarius Brown seeks to upset these “settled interests”
despite Congress’ intent to leave Wilson and Owens in
place, presenting the following questions:
1. Does Section 1658’s four-year statute of
limitations apply to all Section 1983 claims,
contrary to Section 1658’s plain text?
2. Is a one-year limitations period too short for
Section 1983 claims, despite substantial
statutory, precedential, and historical support for
applying one-year periods to Section 1983 claims?
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED......................................... i
TABLE OF CONTENTS .............................................ii
TABLE OF AUTHORITIES ....................................... iv
INTRODUCTION ........................................................ 1
STATEMENT .............................................................. 2
I.
Factual Background ............................................ 2
II. Procedural History ............................................ 2
REASONS FOR DENYING THE PETITION ............ 4
I. Brown's Petition has Vehicle Problems. ............ 4
A. Brown waived the arguments he now raises
for the first time in this Court. ...................... 4
B. Louisiana's recent adoption of a two-year
general statute of limitations for personal
injury actions presents a vehicle problem as
to Brown's first question presented. .............. 7
II. The Questions Brown Raises Do Not Warrant
the Court's Review. .................................................. 8
iii
A. The historical development of relevant law
and jurisprudence supports the holding
below. .............................................................. 8
B. The Fifth Circuit's holding is correct. .......... 20
i.
Section 1658's four-year statute of limitations
does not apply to Section 1983 claims........... 20
ii. A one-year statute of limitations is not
inconsistent with Section 1983. ................ 22
C. Stare decisis requires rejection of Brown's
arguments and weighs against taking this
case. ............................................................... 32
i.
This case involves statutory stare decisis,
where the doctrine is strongest. ................ 32
ii. The stare decisis factors weigh in favor of
denying the Petition and maintaining
existing precedent. .................................... 33
CONCLUSION .......................................................... 37
iv
TABLE OF AUTHORITIES
Cases
Bartenwerfer v. Buckley,
598 U. S. 69 (2023) ................................................. 26
Blake v. Dickason, 997 F.2d 749
(10th Cir. 1993) ............................................... 19, 28
Bd. of Regents of Univ. of State of N.Y. v. Tomanio,
446 U. S. 478 (1980) ................................... 26, 34, 35
Brown v. Pouncy,
55,626 (La. App. 2 Cir. 5/22/2024), 2024 WL
2307514 .................................................................... 4
Burge v. Parish of St. Tammany,
996 F.2d 786 (5th Cir. 1993) .................................. 31
Burnett v. Grattan,
468 U.S. 42 (1984) .....11-14, 16, 19-20, 23, 28-29, 32
Chardon v. Fernandez,
454 U. S. 6 (1981) ................................................... 24
Chardon v. Fumero Soto,
462 U. S. 650 (1983) ............................................... 24
Cutter v. Wilkinson,
544 U.S. 709 (2005) .................................................. 7
Dobbs v. Jackson Women's Health Org.,
597 U. S. 215 (2022) ............................................... 33
Felder v. Casey,
487 U. S. 131 (1988) ......................................... 26, 32
Fidelity National Title Insurance Company v.
Western Surety Company,
277 So.3d 40 (Ala. Civ. App. 2018) ........................ 10
v
Foman v. Davis,
371 U. S. 178 (1962) ............................................... 31
Fox v. Vice,
563 U. S. 826 (2011) ............................................... 30
Galloway v. State of La.,
817 F.2d 1154 (5th Cir. 1987) ................................ 27
Girdner v. Stephens,
48 Tenn. 280 (1870) ............................................... 10
Glover v. United States,
531 U.S. 198 (2001) .................................................. 4
Gozlon-Peretz v. United States,
498 U. S. 395 (1991) ............................................... 21
Hall v. United States,
566 U. S. 506 (2012) ......................................... 23, 26
Hardin v. Straub,
490 U. S. 536 (1989) ......................................... 27, 31
Harper v. Virginia Dept. of Taxation,
509 U. S. 86 (1993) ........................................... 34, 36
Hilton v. S. Car. Pub. Railways Com'n.,
502 U. S. 197 (1991) ............................................... 33
Johnson v. Railway Express Agency, Inc.,
421 U. S. 454 (1975) ............................................... 24
Jones & Preuit v. Mauldin,
876 F2d 1480 (11th Cir. 1989) ......................... 19, 28
Jones v. R. R. Donnelley & Sons Co.,
541 U.S. 369 (2004) ................i, 1, 7, 9, 16-18, 21-22,
..........................................................25-26, 32-34, 37
vi
Kimble v. Marvel Entertainment, LLC,
576 U. S. 446 (2015) ................................... 25, 32, 37
Lamie v. U. S. Trustee,
540 U. S. 526 (2004) ............................................... 21
McDougal v. County of Imperial,
942 F.2d 668 (9th Cir. 1991) ............................ 19, 28
Mitchell v. Forsyth,
472 U. S. 511 (1985) .......................................... 35-36
Newman Marchive Partnersip v. Hightower,
735 F. Supp. 2d 483 (W.D. La. 2009) ............... 34-35
Okure v. Owens,
816 F.2d 45, 48 (2nd Cir. 1987) ....................... 15, 28
O'Sullivan v. Felix,
233 U.S. 318 (1914) .............................. 10, 18, 24, 32
Owens v. Okure,
488 U.S. 235 (1989) ....................... i, 3-4, 7, 9, 14-16,
.............................................. 18-20, 22, 25-26, 32-34
Robertson v. Wegmann,
436 U.S. 584 (1978) .............................. 11, 21, 27, 32
Smith v. Reg. Trans. Auth.,
827 F.3d 412 (5th Cir. 2016) .................................. 21
Tobin v. Houston & T.C. Ry. Co.,
56 Tex. 641 (1882) .................................................. 10
Wilson v. Garcia,
471 U.S. 261 (1985) .............. i, 2-4, 6-7, 13-15, 18-20
..........................................................22, 24-26, 32-34
Woodford v. Ngo,
548 U. S. 81 (2006) ................................................. 30
vii
Woods v. Illinois Dept. of Children and Fam. Servs.,
710 F.3d 762 (7th Cir. 2013))........................... 19, 28
Statutes and Rules
28 U.S.C. § 1367 .......................................................... 3
28 U.S.C. § 1658 ........................i, 1, 6, 8, 17-18, 20-22,
..........................................................25-26, 32-34, 36
31 L.P.R.A. § 5298 ..................................................... 14
42 U.S.C. § 1983 ...................................... i, 1-16, 18-36
42 U.S.C. § 1986 ...................... 13, 15-16, 19-20, 27-29
42 U.S.C. § 1988 .............. i, 1, 3, 6, 8-11, 13-14, 20-21,
..........................................................23-28, 30, 32-33
2024 La. Sess. Law Serv. Act 423 (H.B. 315) ............. 7
Act of Feb. 5, 1841, 1841 Tex. Laws 163
https://texashistory.unt.edu/ark:/67531/metapth67
26/m1/631/ .............................................................. 10
Ala. Code 1852, § 2481(6) (1852),
https://archive.org/details/codeofalabamapre00alab/p
age/456/mode/2up................................................... 10
Cal. C.C.P. § 340(3).................................................... 14
Civil Rights Act of 1866 (14 Stat. 27, § 3)................... 8
E.D. La. Local Rule 16.1,
https://www.laed.uscourts.gov/sites/default/files/local
_rules/2022%20CIVIL%20RULES%20LAED%20w
%20Amendments%203.1.22.pdf ............................ 29
E.D. La. Local Rule 73.2,
viii
https://www.laed.uscourts.gov/sites/default/files/local
_rules/2022%20CIVIL%20RULES%20LAED%20w
%20Amendments%203.1.22.pdf ............................ 29
Federal Rule of Civil Procedure 15 ........................... 31
Ky. Rev. Stat. § 413.140(1)(a) ................................... 14
Ku Klux Klan Act of 1871 (17 Stat. 13 § 1) .......... 9, 28
La. Civil Code of 1825 art. 3501,
https://digitalcommons.law.lsu.edu/cgi/viewcontent.
cgi?article=1023&context=la_civilcode_book_iii#pa
ge=65 ........................................................................ 8
La. Civil Code of 1870, art. 3536,
https://digitalcommons.law.lsu.edu/cgi/viewcontent.
cgi?article=1023&context=la_civilcode_book_iii#pa
ge=65 ........................................................................ 9
La. Civil Code art. 3492.................................. 3-5, 9, 14
La. Civil Code art. 3493.10.......................................... 4
La. Civil Code art. 3493.11...................................... 7, 9
La. R. S. § 44.1 ........................................................... 31
La. R. S. § 44.32 ......................................................... 31
La. R. S. § 44.33 ......................................................... 31
La. R. S. § 44.35 ......................................................... 31
Louisiana Public Records Law .................................. 31
Md. Code art. 57, § 1 (1860),
https://msa.maryland.gov/megafile/msa/speccol/sc2
900/sc2908/000001/000145/html/am145--395.html
................................................................................ 10
ix
M.D. La. Local Rule 5,
https://www.lamd.uscourts.gov/sites/default/files/p
df/2019LocalRules.pdf............................................ 29
M.D. La. Local Rule 16,
https://www.lamd.uscourts.gov/sites/default/files/p
df/2019LocalRules.pdf............................................ 29
Prison Litigation Reform Act (1996) .................... 29-30
Tenn. Code § 2772 (1858),
https://books.google.com/books?id=3bgwAQAAMAA
J&pg=PA534#v=onepage&q&f=false .................... 10
T.C.A. § 28-3-104(a)(1)(A).......................................... 14
W.D. La. Local Rule 3.2,
https://www.lawd.uscourts.gov/local-rules............ 29
W.D. La. Local Rule 73.2.1,
https://www.lawd.uscourts.gov/local-rules............ 29
Other Authorities
Cong. Globe, 42nd Cong., 1st Sess. 819-820 (1871),
https://www.congress.gov/congressionalglobe/congress-42-session-1-part-2.pdf ................. 28
E.D. La. Local Form for Prisoner Complaints under
42 U.S.C. § 1983,
https://www.laed.uscourts.gov/sites/default/files/for
ms/1983.pdf ............................................................ 29
H.R. Rep. 101-734 (1990) ............................... 17-18, 34
M.D. La. Local Form for Prisoner Complaints under
42 U.S.C. § 1983,
https://www.lamd.uscourts.gov/sites/default/files/19
83COMPLAINTFORM-REVISED2014.pdf .......... 29
x
Police Executive Research Forum, 2023 Membership
Survey Results (April 1, 2023),
https://www.policeforum.org/staffing2023 ............ 36
U.S. Census Bureau,
https://www2.census.gov/prod2/statcomp/document
s/1991-02.pdf (Table No. 26, “Resident Population”
by state) .................................................................. 25
W.D. La. Local Forms,
https://www.lawd.uscourts.gov/local-forms........... 29
Other Materials
Memorandum in Opposition to Defendant's Motion to
Dismiss by Plaintiff Jarius Brown, 2022 WL
22864046 (W.D. La. March 24, 2022) .................. 3, 5
Reply Brief for Plaintiff-Appellant Jarius Brown,
2023 WL 3569947 (5th Cir. May 11, 2023) .......... 5-6
1
INTRODUCTION
Under the Court’s longstanding precedents
interpreting Section 1988, the statute of limitations
for Section 1983 claims is borrowed from the forum
state’s general or residual limitations period for
personal injury tort actions.
Brown’s Petition first asks the Court to change
the statute of limitations for all Section 1983 claims in
the entire country to a uniform four-year statute of
limitations by applying the four-year limitations
period from Section 1658 to all Section 1983 claims.
Alternatively, Brown asks the Court to hold that the
one-year general limitations period for personal injury
tort actions under Louisiana law is too short to be
applied to Section 1983 claims.
Both of Brown’s arguments are contrary to the
intent of Congress as expressed in Sections 1988 and
1658. In Jones, this Court recognized that Congress’
intent in enacting Section 1658 in 1990 was to
“alleviat[e] the uncertainty inherent in the practice of
borrowing state statutes of limitations while at the
same time protecting settled interests.” 541 U.S. at
381.
Congress did so by enacting a uniform four-year
statute of limitations for “new claims” but “leav[ing] in
place the ‘borrowed’ limitations periods for preexisting causes of action, with respect to which the
difficult work already has been done.” Id. Section 1983
claims are among those “pre-existing causes of action.”
Id. Thus, Congress clearly intends for “borrowed”
state limitations periods like Louisiana’s one-year
limitations period to continue to apply to Section 1983
2
claims, as they have for well over a century under this
Court’s precedents. Furthermore, as this Court has
held, it is “most unlikely that the period of limitations
applicable to [general personal injury actions
sounding in tort under state law] ever was, or ever
would . . . be inconsistent with federal law in any
respect.” Wilson, 471 U.S. at 279.
Finally, the doctrine of stare decisis strongly
weighs against Brown’s arguments. Accepting
Brown’s arguments would require overturning
multiple precedents of this Court interpreting
statutes, as to which stare decisis is strongest.
Further, statutes of limitations create settled
expectations for plaintiffs and defendants alike.
Accepting Brown’s position would require upsetting
these concrete reliance interests, in violation of one of
the core purposes of stare decisis.
Brown’s Petition should be denied.
STATEMENT
I.
Factual Background
Brown was arrested on September 27, 2019, in
DeSoto Parish, Louisiana. During the jail booking
process, Pouncy and another deputy took Brown to the
laundry room to change into a jail jumpsuit. Brown
alleges that while in the laundry room, Pouncy and the
other deputy used excessive force on Brown, causing
him injuries. Pet App. 39a-43a.
II.
Procedural History
1. Brown filed a Section 1983 claim on
September 24, 2021, in the United States District
Court for the Western District of Louisiana – nearly
3
two years after the September 27, 2019, incident. He
asserted that during the September 27, 2019, incident,
Pouncy and another deputy used excessive force on
him in violation of the Fourth Amendment. He also
asserted a claim for battery under Louisiana law.
2. Pouncy moved to dismiss Brown’s claims as
time barred. Pouncy asserted that under Section 1988,
as interpreted by Wilson and Owens, Louisiana’s oneyear general limitations period for personal injury tort
actions that was in force for all claims that arose
before July 1, 2024, La. Civ. Code Art. 3492, applied to
all Section 1983 claims in Louisiana, including
Brown’s claim.1
In his Opposition, Brown asked that a special
exception to Wilson and Owens be made for the subset
of Section 1983 claims based on alleged “police
brutality.” 2022 WL 22864046 at *21. Brown argued
that applying Louisiana’s one-year limitations period
to the subset of Section 1983 claims based on alleged
police brutality is inconsistent with Section 1983, such
that under Section 1988, that period cannot be applied
to this subset of Section 1983 claims. See id.
The district court followed Wilson and Owens.
It dismissed Brown’s Section 1983 claim with
prejudice as time barred. Pet. App. 16a-28a.2
The Louisiana equivalent of a statute of limitations is a
“liberative prescriptive period;” the Louisiana equivalent of a tort
is a “delict.” For the sake of simplicity, this brief does not use the
Louisiana-specific terms.
1
The district court dismissed Brown’s state law claim without
prejudice under 28 U.S.C. § 1367(c). Brown then filed his state
2
4
3. Brown appealed. At the Fifth Circuit, Brown
again asserted that a special exception should be made
to Wilson and Owens for the subset of Section 1983
claims based on alleged police brutality. Like the
district court, the Fifth Circuit followed Wilson and
Owens and affirmed dismissal of Brown’s Section 1983
claim with prejudice as time barred. Pet. App. 1a-15a.
4. Brown now petitions this Court for a writ of
certiorari.
REASONS FOR DENYING THE PETITION
I.
BROWN’S PETITION HAS VEHICLE PROBLEMS.
A. Brown waived the arguments he now
raises for the first time in this Court.
Brown’s Petition raises two questions. Neither
question was raised or addressed below. This Court
does “not decide questions neither raised nor resolved
below.” Glover v. United States, 531 U.S. 198, 205
(2001).
Below, Brown sought a special exception to the
Wilson and Owens framework for the subset of Section
1983 claims based on alleged police brutality,
including his claim. At the district court, Brown
sought application of the two-year limitations period
in La. Civ. Code Art. 3493.10 to his Section 1983 claim,
rather than the one-year period under La. Civ. Code
Art. 3492. The two-year limitations period in La. Civ.
Code Art. 3493.10 applies only to state law claims for
law claim in state court. Brown’s state law claim remains
pending in state court. See Brown v. Pouncy, 55,626 (La. App. 2
Cir. 5/22/2024), 2024 WL 2307514.
5
“crimes of violence” as defined under Louisiana law.
See Pet. App. 16a, 23a, and 36a-37a.
In his Opposition to Pouncy’s Motion to Dismiss
at the district court, Brown argued that “the rote
application of Louisiana’s one-year prescription period
in police brutality cases rests in irreconcilable
tension with the objectives of Section 1983.” 2022 WL
22864046 at *21 (emphasis added).
As the Fifth Circuit stated in the opening
paragraph of its unanimous opinion, Brown’s
argument at the Fifth Circuit was as follows:
Brown argues that this one-year period [La. Civ.
Code Art. 3492] should not apply to police
brutality claims brought under Section
1983 and seeks reversal of the district court's
dismissal of his claims as untimely. He contends
that the one-year period both impermissibly
discriminates against Section 1983 police
brutality claims and practically frustrates
litigants' ability to bring such claims.
Pet. App. 2a (emphasis added).
Further, in Brown’s Reply Brief at the Fifth
Circuit, he asserted that:
Whether Louisiana's one-year residual statute of
limitations undermines the federal interests
underpinning Section 1983 claims as a “general”
matter, as Appellee appears to require, is a
question decidedly not before this Court.
Mr. Brown has not brought this challenge
to address every manner of Section 1983
claims.
6
2023 WL 3569947 at *12 (emphasis added).
By contrast, in his Petition in this Court, Brown
substantially broadens his arguments beyond those he
advanced below. Brown has no circuit split on which
to base his Petition. Thus, Brown broadens his
arguments to bolster his assertion that this case
presents an issue of national importance. See Sup. Ct.
R. 10.
Rather than limit his arguments to the context
of Section 1983 claims based on alleged police
brutality, like he did below, Brown now asks this
Court to apply Section 1658’s four-year statute of
limitations to all Section 1983 claims in the entire
country. Pet. 23. As the Fifth Circuit’s opinion makes
clear, Brown did not brief this sweeping argument
below. Indeed, the Fifth Circuit’s opinion does not
even mention Section 1658 – much less address
Brown’s argument in his second question presented
that Section 1658 provides a “suitable” federal statute
of limitations to apply to all Section 1983 claims under
Section 1988. Pet. App. 1a-15a.
Brown’s first question presented similarly
broadens the scope of the arguments he made below.
Rather than limit his assertion that Louisiana’s oneyear statute of limitations is too short to the context of
Section 1983 claims based on alleged police brutality,
Brown now asserts that Louisiana’s one-year statute
of limitations is too short for all Section 1983 claims.
Pet. 13-18.
Brown is bound by his choice below to ask for a
special exception for the subset of Section 1983 claims
based on alleged police brutality to the Wilson and
7
Owens framework rather than raise the arguments he
now raises for the first time in this Court. Because
Brown did not brief the arguments he asserts in this
Court to the courts below, Brown has waived those
arguments – an insurmountable vehicle problem. See
Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005) (the
Court is “a court of review, not of first view”).
B. Louisiana’s recent adoption of a two-year
general statute of limitations for personal
injury actions presents a vehicle problem
as to Brown’s first question presented.
Louisiana recently adopted a two-year general
statute of limitations for tort claims that arise on or
after July 1, 2024. See 2024 La. Sess. Law Serv. Act
423 (H.B. 315); see La. Civ. Code Art. 3493.11.
After the enactment of La. Civ. Code Art.
3493.11, a case arising out of Louisiana is a poor
vehicle to address Brown’s first question presented, in
which he asks the Court to hold that a one-year
statute of limitations is too short for Section 1983
claims. As noted above and explained in more detail
below, both Congress and this Court have already
addressed that question. See Wilson, 471 U.S. at 279;
see Jones, 541 U.S. at 382. But even if this obstacle
could be overcome, Brown’s first question presented
will only apply to a finite number of Section 1983
claimants in Louisiana going forward. If the Court
ever chooses to address this issue again, a case arising
from a jurisdiction that still has a one-year general or
residual statute of limitations for personal injury tort
actions would be a more appropriate vehicle to address
this question.
8
II.
THE QUESTIONS BROWN RAISES DO NOT
WARRANT THE COURT’S REVIEW.
The two questions Brown’s Petition presents do
not warrant the Court’s review. Below, Pouncy traces
the historical development of relevant law and
jurisprudence in this area. This historical
development shows that the Fifth Circuit correctly
decided this case under the Court’s longstanding
precedents – precedents that correctly interpreted the
statutes at issue, Sections 1988, 1983, and 1658.
Finally, stare decisis strongly favors leaving the
Court’s longstanding precedents in place and denying
Brown’s Petition.
A. The historical development of relevant
law and jurisprudence supports the
holding below.
In 1825, the Louisiana legislature enacted the
Civil Code of 1825. Article 3501 of the Civil Code of
1825 provided that “The actions . . . for damages . . .
resulting from offences or quasi-offences . . . are
prescribed by one year.”3 Article 3501 established a
one-year limitations period applicable to all Louisiana
tort actions.
In 1866, Congress enacted what is now Section
1988 in the Civil Rights Act of 1866 (14 Stat. 27, § 3).
That Act included the same language that is contained
in Section 1988(a) today requiring federal courts to
3
Compiled Edition of the Civil Codes of Louisiana (1940),
https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=1
023&context=la_civilcode_book_iii#page=65 (last accessed Aug.
7, 2024).
9
borrow and apply “state-law limitations periods where
doing so is consistent with federal law” for federal civil
rights claims that do not have their own statutes of
limitations. Owens, 488 U.S. at 239; see 42 U.S.C.
§ 1988(a).
In 1870, the Louisiana legislature enacted the
Civil Code of 1870. Like the Civil Code of 1825, the
Civil Code of 1870 included a general one-year
limitations period for tort actions. Article 3536 of the
Civil Code of 1870 provided that “The following actions
are also prescribed by one year: That . . . for damages
. . . resulting from offenses or quasi offenses.”4
When Louisiana’s Civil Code of 1870 was
revised in 1983, this same one-year limitations period
was continued in Article 3492 of the Louisiana Civil
Code. See La. C.C. Art. 3492, cmt. (a). Louisiana’s oneyear limitations period for personal injury tort claims
did not change until July 1, 2024, with the repeal of
La. C.C. Art. 3492 and the enactment of La. Civ. Code
Art. 3493.11 for claims accruing on or after that date.
In 1871, Congress passed the Ku Klux Klan Act
of 1871 (17 Stat. 13, § 1), which included the operative
language of what is now Section 1983. Congress did
not include in that Act a specific limitations period for
Section 1983 claims, nor has Congress enacted such a
specific limitations period since 1871. See Owens, 488
U.S. at 239; Jones, 541 U.S. at 378-382.
4https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=
1023&context=la_civilcode_book_iii#page=65 (last accessed Aug.
12, 2024).
10
Thus, when both Section 1988 and Section 1983
were enacted in 1866 and 1871, respectively,
Louisiana had a general one-year limitations period
for personal injury tort claims. Alabama, Maryland,
Tennessee, and Texas also had general or residual
one-year limitations periods for personal injury tort
claims when Sections 1988 and 1983 were enacted.5
This Court has long applied Louisiana’s oneyear limitations period for tort claims to federal civil
rights claims that do not have their own limitations
periods – including Section 1983 claims. See
O’Sullivan v. Felix, 233 U.S. 318, 319-325 (1914)
(Louisiana’s one-year limitations period applied to bar
a claim under what is now Section 1983 that was filed
more than one year after the incident at issue, even
though the defendants had already been convicted of
Alabama – See Ala. Code 1852, § 2481(6) (1852);
https://archive.org/details/codeofalabamapre00alab/page/456/mo
de/2up (last accessed Aug. 10, 2024); Fidelity National Title
Insurance Company v. Western Surety Company, 277 So.3d 40,
43-44 (Ala. Civ. App. 2018).
5
Maryland – See Md. Code, art. 57, § 1 (1860);
https://msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/0
00001/000145/html/am145--395.html (last accessed Aug. 7,
2024).
Tennessee
–
See
Tenn.
Code
§ 2772
(1858);
https://books.google.com/books?id=3bgwAQAAMAAJ&pg=PA53
4#v=onepage&q&f=false (last accessed Aug. 7, 2024); Girdner v.
Stephens, 48 Tenn. 280, 282 (1870).
Texas - See Act of Feb. 5, 1841, 1841 Tex. Laws 163,
https://texashistory.unt.edu/ark:/67531/metapth6726/m1/631/
(last accessed Aug. 7, 2024); Tobin v. Houston & T.C. Ry. Co., 56
Tex. 641, 642 (1882).
11
federal criminal civil rights violations against the
plaintiff for their conduct during that incident).
Under Section 1988, the Court has also applied
other state laws to Section 1983 claims even though
they result in the complete extinguishment of a
timely-filed Section 1983 claim. In Robertson v.
Wegmann, 436 U.S. 584, 591 (1978), this Court applied
a Louisiana state law providing that tort actions other
than those for damage to property survived only in
favor of a spouse, children, parents, or siblings to a
Section 1983 claim – even though it automatically
extinguished the Section 1983 claim at issue.
The Court found that “Section 1988 quite
clearly instructs us to refer to state statutes” in the
absence of a federal law addressing a particular issue
in Section 1983 claims. Id. at 593. The Court rejected
the plaintiff’s contention that application of this state
law rule to Section 1983 claims was inconsistent with
federal law. See id. (“A state statute cannot be
considered ‘inconsistent’ with federal law merely
because the statute causes the plaintiff to lose the
litigation.”).
In Burnett v. Grattan, 468 U.S. 42, 45 (1984),
the district court applied a six-month state statute of
limitations for filing an employment discrimination
complaint with a state administrative body to an
employment discrimination claim brought under 42
U.S.C. §§ 1981 and 1983. The Fourth Circuit reversed.
See id. at 45-46.
This Court granted certiorari and affirmed. See
id. at 46. First, it stated that under Section 1988, there
is a “three-step process” to determine the appropriate
12
limitations period for claims under Section 1981,
Section 1983, or other similar federal civil rights
statutes that do not have specific limitations periods.
Id. at 48.
At the first step, courts “look to the laws of the
United States.” But “[i]t is now settled that federal
courts will turn to state law for statutes of limitations
in actions brought under [Sections 1981 and 1983],”
since no specific federal limitations period exists. Id.
at 49 (emphasis added). Second, courts apply the law
of the forum state by selecting the “most appropriate”
state statute of limitations, which is “the state law of
limitations governing an analogous cause of action.”
Id. Third, courts only apply the forum state’s rule if it
is not “inconsistent with the Constitution and laws of
the United States.” Id. at 48.
The Court agreed with the Fourth Circuit at the
second step of this test and affirmed. “The functional
differences between the federal causes of action and
the state administrative law make [the 6-month state
administrative
statute
of
limitations]
an
inappropriate analog from which to borrow to
effectuate Congress’ purpose in enacting the Civil
Rights Acts.” Id. at 50. Because the 6-month
limitations period was the inappropriate state statute
of limitations to apply to Section 1981 or 1983 claims,
“[t]he step three inquiry – whether a state rule of
decision is inconsistent with the Constitution or
federal law – [was] not necessary to resolve [that]
case.” Id. at 53 n.15.
Notably, in a concurring opinion in Burnett,
then-Justice Rehnquist addressed the third step from
13
the Burnett framework of what makes a state law
“inconsistent with the Constitution and laws of the
United States” under Section 1988. Justice Rehnquist
stated that, “if the state statute of limitations [to be
applied to a federal civil rights claim] fails to afford a
reasonable time to the federal claimant, then state
legislative intent can also be disregarded.” 468 U.S. at
61. Brown relies heavily on this statement in support
of his second question presented. But Justice
Rehnquist also stated that “The willingness of
Congress to impose a 1–year limitations period in 42
U.S.C. § 1986 [another post-Civil War federal civil
rights statute creating a cause of action for damages]
demonstrates that at least a 1–year period is
reasonable” – a conclusion that Brown simply ignores.
Id.
In Wilson v. Garcia, 471 U.S. 261 (1985), this
Court addressed the second step from Burnett
described above to resolve the “conflict, confusion, and
uncertainty” that resulted from the then-existing rule
for determining which state statute of limitations
should apply to claims under Section 1983 at that
second step. Id. at 266. This required the Court to
decide “whether all § 1983 claims should be
characterized in the same way, or whether they should
be evaluated differently depending upon the varying
factual circumstances and legal theories presented in
each individual case.” Id. at 268.
The Court held that Section 1988 is “a directive
to select, in each State, the one most appropriate
statute of limitations for all § 1983 claims,” which is
the statute of limitations governing “the tort action for
the recovery of damages for personal injuries.” Id. at
14
275. This holding was largely based on “practical
considerations,” particularly the fact that picking a
state statute of limitations to apply to a Section 1983
claim based on “an analysis of the particular facts of
each claim . . . inevitably breeds uncertainty and timeconsuming litigation that is foreign to the central
purposes of § 1983.” Id. at 272.
Finally, the Court then addressed the third step
from the Burnett framework derived from Section
1988’s text. The Court found that it was “most
unlikely that the period of limitations
applicable to [general personal injury actions
sounding in tort under state law] ever was, or
ever would be, fixed in a way that would
discriminate against federal claims, or be
inconsistent with federal law in any respect.” Id.
at 279. (emphasis added). At the time the Court
reached this conclusion in Wilson in 1985, Louisiana,
Tennessee, Kentucky, California, and Puerto Rico had
one-year statutes of limitations for personal injury
tort actions.6
In Owens, the district court and Second Circuit
applied Wilson to find that New York’s three-year
6 California – See Cal. C.C.P. § 340(3) (version effective through
December 31, 2002).
Kentucky – See Ky. Rev. Stat. § 413.140(1)(a) (version effective
from June 21, 1974, through July 14, 2000).
Louisiana – See La. C.C. Art. 3492 (in effect until July 1, 2024).
Puerto Rico – See 31 L.P.R.A. § 5298.
Tennessee – See T.C.A. § 28-3-104(a)(1)(A) (version effective
from 1972 to 1990, which was previously identified as § 28-304).
15
general statute of limitations for personal injury
actions, rather than New York’s one-year statute of
limitations for assault and battery, applied to a
Section 1983 claim based on the alleged use of
excessive force by police officers. 488 U.S. at 237-238.
The Second Circuit so held because it found that
(1) Wilson required the selection of a “general”
limitations period rather than one taken from a
“precisely drawn analogy” to a particular type of state
law tort claim; and (2) the one-year limitations period
was not “long enough to effectuate the policies
embedded in section 1983.” Okure v. Owens, 816 F.2d
45, 48 (2nd Cir. 1987). As to the second ground, a
dissenting judge found that a one-year limitations
period is not too short, especially since Congress itself
established a one-year statute of limitations for
federal civil rights claims under Section 1986. See id.
at 52 (Van Graafeiland, J., dissenting).
The Supreme Court granted certiorari to
address “what limitations period should apply to a
§ 1983 action where a State has one or more statutes
of limitations for certain enumerated intentional torts,
and a residual statute for all other personal injury
actions,” an issue that had divided federal courts of
appeals since its decision in Wilson. Owens, 488 U.S.
at 236. The Court sought to “provide courts with a rule
for determining the appropriate personal injury
limitations statute that can be applied with ease and
predictability in all 50 States.” Id. at 243. The Court
held that “where state law provides multiple statutes
of limitations for personal injury actions, courts
considering § 1983 claims should borrow the general
16
or residual statute for personal injury actions.” Id. at
249-250.
In a footnote, the Court found that it “need not
address [the] argument that applying a 1-year
limitations period to § 1983 actions would be
inconsistent with federal interests,” since the Court
had already held that the three-year statute of
limitations applied for a different reason. Id. at 251
n.13. In other words, because the Court had agreed
with one of the rationales for the Second Circuit’s
holding, it did not need to address the Second Circuit’s
other rationale.
In the same footnote, the Court cited Justice
Rehnquist’s concurring opinion in Burnett. As stated
above, in that concurring opinion, Justice Rehnquist
stated that “The willingness of Congress to impose a
1–year limitations period in 42 U.S.C. § 1986
demonstrates that at least a 1–year period is
reasonable.” Burnett, 468 U.S. at 61. Thus, contrary to
Brown’s arguments, this footnote cannot be read as an
“express[ion] [of] skepticism” as to whether a one-year
statute of limitations is sufficient for Section 1983
claims. Pet. 31.
After Owens, the Federal Courts Study
Committee (“FCSC”), a body created by Congress to
study and recommend changes to federal statutes,
“recommended the enactment of a retroactive, uniform
federal statute of limitations” for federal claims that
did not already have statutes of limitations. Jones, 541
U.S. at 380.
17
But Congress only partially accepted this
proposal. Instead, Congress enacted Section 1658.
Section 1658 states, in pertinent part, as follows:
Except as otherwise provided by law, a civil
action arising under an Act of Congress enacted
after the date of the enactment of this
section [i.e., December 1, 1990] may not be
commenced later than 4 years after the cause of
action accrues. 28 U.S.C. § 1658(a) (emphasis
added).
In 2004, the Court addressed Section 1658 in
depth in Jones. That case presented the question of
what the phrase “arising under” means in Section
1658. The Court found that this phrase was
ambiguous, and thus the Court had to “look beyond
the bare text of § 1658 to the context in which it was
enacted and the purposes it was designed to
accomplish” to interpret this phrase, including review
of the legislative history of the statute. Jones, 541 U.S.
at 377.
As the Court stated in Jones, the House
Committee on the Judiciary’s report regarding what
became Section 1658 states that, in partially rejecting
the recommendation of the FCSC, Congress was
concerned that “retroactively imposing a four year
statute of limitations on legislation that the courts
have previously ruled is subject to [other limitations
periods] would threaten to disrupt the settled
expectations of a great many parties.” H.R. Rep. 101734, at 24 (1990); see id. at 378-382. Since “settling the
expectations of prospective parties is an essential
purpose of statutes of limitations,” Congress decided
18
not to change the statute of limitations for existing
federal claims. Id.
As this Court unanimously held in Jones,
Congress’ intent in enacting Section 1658 was to
“alleviat[e] the uncertainty inherent in the practice of
borrowing state statutes of limitations while at the
same time protecting settled interests.” 541 U.S.
at 381 (emphasis added). Congress did so by enacting
a uniform four-year statute of limitations for “new
claims” but “leav[ing] in place the ‘borrowed’
limitations periods for pre-existing causes of
action, with respect to which the difficult work
already has been done.” Id. (emphasis added).
Given these purposes, in Jones the Court held that
Section 1658’s four-year statute of limitations applies
prospectively to new federal claims that are “made
possible” by federal statutes enacted after December
1, 1990, but it does not apply to federal claims that
existed before that date (like Section 1983 claims).
Jones, 541 U.S. at 382.
In other words, in enacting Section 1658,
Congress left in place Wilson, Owens, and other
“borrowing” precedents addressing the applicable
statutes of limitations for existing federal claims that
do not have their own specific limitations periods. As
the courts held below, under Wilson and Owens,
Louisiana’s “borrowed” one-year general limitations
period for tort claims applies to Section 1983 claims
like Brown’s that arose before July 1, 2024 – as it has
for over a century since the Court’s decision in
O’Sullivan.
19
Since Owens in 1989, the Fifth Circuit has
uniformly and repeatedly applied the general or
residual limitations period for personal injury actions
in the relevant state, including Louisiana’s one-year
period, to Section 1983 claims. See Pet. App. 13a. This
uniform application of Louisiana’s one-year
limitations period to Section 1983 claims under Wilson
and Owens shows that the Court’s holdings in those
cases has accomplished precisely what the Court
sought – “uniformity, certainty, and the minimization
of unnecessary litigation.” Wilson, 471 U.S. at 275;
Owens, 488 U.S. at 240.
Since this Court decided Wilson and Owens, at
least four federal circuits have addressed and rejected
arguments like the arguments Brown asserts in his
Petition. In Jones & Preuit v. Mauldin, 876 F.2d 1480,
1484 (11th Cir. 1989) and McDougal v. County of
Imperial, 942 F.2d 668, 672-673 (9th Cir. 1991), the
Eleventh and Ninth Circuits rejected arguments that
one-year general or residual statutes of limitations for
personal injury actions under state law were too short
for Section 1983 claims. Notably, in McDougal, the
Ninth Circuit found Justice Rehnquist’s concurring
opinion in Burnett persuasive, holding that “Congress
has also demonstrated its belief that a one-year period
is reasonable in the civil rights context, providing for
such a period in 42 U.S.C. § 1986.” 942 F.2d at 673.
Further, in Blake v. Dickason, 997 F.2d 749, 751
(10th Cir. 1993) and Woods v. Illinois Dept. of Children
and Fam. Servs., 710 F.3d 762, 766-769 (7th Cir. 2013)
the Tenth and Seventh Circuits rejected arguments
that two-year state statutes of limitations were too
short to be applied to Section 1983 claims. Both
20
circuits agreed with and relied upon Justice
Rehnquist’s conclusion that “[t]he willingness of
Congress to impose a 1–year limitations period in 42
U.S.C. § 1986 demonstrates that at least a 1–year
period is reasonable.” Burnett, 468 U.S. at 61.
B. The Fifth Circuit’s holding is correct.
The Fifth Circuit correctly decided this case.
The arguments Brown makes in support of both of his
questions presented are wrong.
i.
Section 1658’s four-year statute of
limitations does not apply to Section
1983 claims.
In his second question presented, Brown asks
the Court to apply Section 1658(a)’s four-year statute
of limitations to his Section 1983 claim and to all
Section 1983 claims in the entire country. Brown
asserts that, at the first step of the Burnett
framework, Section 1658’s four-year statute of
limitations provides a federal law that is “suitable to
carry [Section 1983] into effect” – one that was not
available when Burnett, Wilson, and Owens were
decided. Pet 22.
According to Brown, the enactment of Section
1658 “calls for a reevaluation of the central analysis
under Section 1988, and conducting that analysis
demonstrates that Section 1658 provides the
limitations period for all Section 1983 claims across
the Nation.” Pet. 23. According to Brown, “[i]t is far
more consistent with the federal interests of Section
1983 to fill its missing gap with a uniform federal
catchall statute of limitations than to borrow from a
patch-work of fifty different states’ residual personal
21
injury limitations periods providing wildly divergent
time periods for bringing suit.” Id.
This argument is contrary to common sense and
the way statutes must be interpreted under this
Court’s precedent. “The starting point in discerning
congressional intent is the existing statutory text.”
Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004). “It is
well established that when the statute's language is
plain, the sole function of the courts—at least where
the disposition required by the text is not absurd—is
to enforce it according to its terms.” Id. (internal
quotations omitted). Further, a “specific provision
controls over one of more general application.” GozlonPeretz v. United States, 498 U.S. 395, 407 (1991).
Section 1658 clearly states that its four-year
statute of limitations only applies to “civil action[s]
arising under an Act of Congress enacted after the
date of the enactment of this section [i.e., December 1,
1990].” (emphasis added).
Section 1983 claims existed before December 1,
1990. Section 1983 claims were not made possible by
a federal statute enacted after December 1, 1990. See
Jones, 541 U.S. at 382; Smith v. Reg. Trans. Auth., 827
F.3d 412, 421 n.2 (5th Cir. 2016). Section 1658’s text
contains Congress’s specific intent as to the
application of the four-year statute of limitations it
created. By contrast, Section 1988, the statute on
which Brown bases his argument, is generally
applicable to multiple federal civil rights claims and to
issues beyond statutes of limitations alone. See, e.g.,
Robertson, 436 U.S. at 591-593.
22
Thus, under the plain text of Section 1658,
which specifically addresses the claims to which its
four-year statute of limitations applies, the four-year
statute of limitations in that section does not apply to
Section 1983 claims and cannot be applied to Section
1983 claims. Applying Section 1658(a)’s four-year
limitations period to a Section 1983 claim would
violate Congress’ intent, as expressed in the plain text
of Section 1658. As this Court held in Jones,
Congress’s intent in enacting Section 1658 was for its
four-year statute of limitations to only apply to “new
claims” while “leav[ing] in place the ‘borrowed’
limitations periods for pre-existing causes of action”
like Brown’s Section 1983 claim. 541 U.S. at 382. Since
the Court’s decisions in Wilson and Owens, followed by
the enactment of Section 1658 in 1990, Congress has
not reversed course. Instead, Congress has left Section
1658 in place for new claims and the borrowed statute
of limitations under Wilson and Owens in place for
Section 1983 claims.
Congress gets to decide which statute of
limitations is “suitable” for Section 1983 claims.
Congress has expressly chosen to (1) reject a uniform
four-year national statute of limitations for Section
1983 claims and (2) leave in place the “borrowed” state
limitations periods that apply to Section 1983 claims
under Wilson and Owens, like the one-year limitations
period at issue here.
ii.
A one-year statute of limitations is
not inconsistent with Section 1983.
In his first question presented, Brown asserts
that application of Louisiana’s one-year limitations
23
period for personal injury tort actions to Section 1983
claims is so short that it is “inconsistent with the
Constitution and laws of the United States” at the
third step of the Burnett framework interpreting
Section 1988. Pet. 13-21. This argument is wrong.
First, as stated above, Louisiana had a one-year
general limitations period for personal injury tort
actions from 1825 to July 1, 2024. Thus, when (1)
Congress enacted what is now Section 1988 in 1866
and (2) Congress enacted what is now Section 1983 in
1871, Louisiana had a general one-year limitations
period for personal injury tort actions. Congress is
presumed to be “aware of existing law when it passes
legislation.” Hall v. United States, 566 U.S. 506, 516
(2012). Accordingly, applying a one-year limitations
period to Section 1983 claims in Louisiana is not
inconsistent with Congress’ intent in enacting Section
1988 and Section 1983, because that is the same
general limitations period for personal injury tort
actions that existed under Louisiana law at the time
Congress enacted those statutes.
Further, as stated above, Alabama, Maryland,
Tennessee, and Texas also had one-year statutes of
limitations for personal injury tort actions in 1866 and
1871. It could not have escaped Congress’s attention
(and Congress is presumed to have known) that five of
the states had one-year statutes of limitations for
personal injury tort actions that, under Section 1988,
would apply to the federal civil rights claims it had
created that did not have their own statutes of
limitations.
24
Notably, all five of the states with one-year
limitations period for personal injury tort actions in
1866 and 1871 were former slave states, four of the
five had just rebelled against the Union, and
Tennessee was the birthplace of the Ku Klux Klan.
Those states and government officers in them were
among the original primary targets of Section 1983 –
making it even clearer that it could not have escaped
Congress’s attention that under Section 1988, these
one-year statutes of limitations would apply to Section
1983 claims.
Second, as set forth above, this Court has
applied Louisiana’s one-year general limitations
period for personal injury tort claims to Section 1983
claims arising from Louisiana since at least 1914. See
O’Sullivan, 233 U.S. at 321-325. The Court has also
applied borrowed one-year limitations periods to
federal civil rights claims in multiple other cases
without ever suggesting that doing so was
“inconsistent with the Constitution and laws of the
United States” under Section 1988. See Johnson v.
Railway Express Agency, Inc., 421 U.S. 454, 462-467
(1975); Chardon v. Fernandez, 454 U.S. 6, 6-8 (1981);
Chardon v. Fumero Soto, 462 U.S. 650, 654-662
(1983).
In Wilson, this Court stated that it is “most
unlikely that the period of limitations
applicable to [general personal injury actions
sounding in tort under state law] ever was, or
ever would be, fixed in a way that would
discriminate against federal claims, or be
inconsistent with federal law in any respect.” Id.
at 279. (emphasis added).
25
As set forth above, at the time Wilson was
decided in 1985, Louisiana, Tennessee, Kentucky,
California, and Puerto Rico all had one-year statutes
of limitations for personal injury tort actions. Thus, in
so holding in Wilson, it could not have escaped the
Court’s attention that this holding applied to one-year
statutes of limitations in five jurisdictions that, at the
time, encompassed a population of over 39 million
people.7
Further, since the Court’s decisions in Wilson
and Owens in 1985 and 1989, it has become even
clearer that the one-year limitations period applies to
Section 1983 claims in Louisiana. Congress could have
changed this result at any time if the Court had
interpreted Sections 1988 and 1983 incorrectly. See
Kimble v. Marvel Entertainment, LLC, 576 U.S. 446,
456 (2015).
But Congress did not do so. In fact, as stated
above, Congress rejected a uniform, retroactive fouryear federal statute of limitations for Section 1983
claims. Instead, Congress enacted Section 1658,
“leav[ing] in place the ‘borrowed’ limitations periods
for pre-existing causes of action” like Section 1983
claims. Jones, 541 U.S. at 382.
Congress is presumed to be aware that this
meant the continued application of one-year
limitations periods to Section 1983 claims in the
jurisdictions that have such limitations periods. See
U.S. Census Bureau,
https://www2.census.gov/prod2/statcomp/documents/1991-02.pdf
(Table No. 26, “Resident Population” by state) (last accessed
Aug. 10, 2024).
7
26
Hall, 566 U.S. at 516. As such, “the unmistakable
implication” of Congress’s enactment of Section 1658
after Wilson and Owens “is that Congress embraced
[Wilson and Owens’s] holding[s],” approving the
application of borrowed state limitations periods to
Section 1983 claims, including one-year periods in
jurisdictions with one-year limitations periods for
personal injury tort actions. Bartenwerfer v. Buckley,
598 U.S. 69, 81 (2023); see Jones, 541 U.S. at 382.
Third, applying a one-year limitations period to
Section 1983 claims does not eliminate the ability to
assert such claims. Instead, it merely imposes a
deadline by which a plaintiff must assert such claims.
This Court has recognized both (1) the
importance of state statutes of limitations and the
substantive policies served by them; and that (2)
Congress deems such policies important by deferring
to state law for statutes of limitations for federal civil
rights claims in Section 1988. See Bd. of Regents of
Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 487488 (1980) (“Statutes of limitations . . . have long been
respected as fundamental to a well-ordered judicial
system”); Wilson, 471 U.S. at 271 (“A federal cause of
action brought at any distance of time would be utterly
repugnant to the genius of our laws.”) (internal
quotations and citations omitted); Felder v. Casey, 487
U.S. 131, 139-140 (1988) (“Because statutes of
limitation are among the universally familiar aspects
of litigation considered indispensable to any scheme of
justice, it is entirely reasonable to assume that
Congress did not intend to create a right enforceable
in perpetuity,” so the Court has long applied state
statutes of limitations to federal civil rights claims
27
that do not have their own limitations periods under
Section 1988).
If completely extinguishing a timely-filed
Section 1983 claim pursuant to a state law governing
survival of actions is not inconsistent with Section
1983, then merely imposing a one-year statute of
limitations to file a Section 1983 action cannot be
inconsistent with Section 1983. See Robertson, 436
U.S. at 591-593; see also Hardin v. Straub, 490 U.S.
536, 544 (1989) (though state tolling provisions for
statutes of limitations also apply to Section 1983
claims, if a state does not have a tolling provision
applicable to toll the statute of limitations for claims
by prisoners while incarcerated, that is not
inconsistent with Section 1983); Pet App. 12a-13a.
Fourth, Congress has itself enacted a one-year
statute of limitations for certain federal civil rights
claims in Section 1986. Section 1986 claims are
complex, because they require (1) a violation of a
federal civil right, (2) a conspiracy of persons to engage
in the violation, and (3) an individual who has the
power to stop or help stop the conspiracy and knows of
the conspiracy but fails to stop or help stop it. See
Galloway v. State of La., 817 F.2d 1154, 1159 n.2 (5th
Cir. 1987). Thus, Section 1986 claims are much more
complex than any Section 1983 claim, because they
require proof of both a violation of a federal civil right
(as any Section 1983 claim requires) and two
additional, complex elements over and above the
violation of the right itself.
Nonetheless, Congress set a one-year
limitations period for such claims. If Congress set a
28
one-year limitations period for filing much more
complex federal civil rights claims than Section 1983
claims, Louisiana’s one-year limitations period is not
so short that it is “inconsistent with the Constitution
and laws of the United States” under Section 1988
such that it cannot be applied to Section 1983 claims.
As discussed above, multiple Supreme Court justices
and federal circuit courts have agreed. See Burnett,
468 U.S. 61 (Rehnquist, J., concurring); McDougal,
942 F.2d at 673; Blake, 997 F.2d at 751; Woods, 710
F.3d at 767; Okure, 816 F.2d at 52-53 (Van
Graafeiland, J., dissenting); see also Jones & Preuit,
876 F.2d at 1484.
Brown may argue that Section 1986’s one-year
statute of limitations does not have any bearing on
whether a one-year limitations period is “inconsistent
with the Constitution and laws of the United States”
under Section 1988 such that it cannot be applied to
Section 1983 claims. Brown may so argue because
what is now Section 1986 was the ultimate result of
debate and compromise over the proposed Sherman
Amendment to the Ku Klux Klan Act of 1871.8
But this argument does not make sense. A oneyear limitations period apparently was the shortest
period that competing factions in Congress found
acceptable for Section 1986 claims after extensive
debate and compromise. Thus, the fact that the oneyear limitations period in Section 1986 was a product
of extensive debate and compromise actually supports
Cong. Globe, 42nd Cong., 1st Sess. 819-820 (1871),
https://www.congress.gov/congressional-globe/congress-42session-1-part-2.pdf (last accessed Aug. 10, 2024).
8
29
the conclusion that “at least a 1-year period is
reasonable” for federal civil rights claims, including
Section 1983 claims that are substantially less
complex than Section 1986 claims. Burnett, 468 U.S.
at 61 (Rehnquist, J., concurring).
Fifth, the reality of Section 1983 litigation in
federal courts in Louisiana also disproves Brown’s
argument. The dockets of all three federal district
courts in Louisiana and the Fifth Circuit are filled
with Section 1983 actions that, unlike the instant
action, were filed within the applicable limitations
period. Many of those cases involve allegations of
excessive force by law enforcement officers. Section
1983 actions by incarcerated prisoners are so plentiful
in Louisiana’s three federal district courts that they
have adopted multiple specific rules, forms, and
procedures to address the volume of such cases in an
efficient manner.9 Congress itself recognized this fact
by enacting the Prison Litigation Reform Act (“PLRA”)
See W.D. La. Local Rules 3.2 and 73.2.1 at
https://www.lawd.uscourts.gov/local-rules (last accessed Aug. 10,
2024); see https://www.lawd.uscourts.gov/local-forms (last
accessed Aug. 10, 2024).
9
See E.D. La. Local Rules 16.1 and 73.2(a) at
https://www.laed.uscourts.gov/sites/default/files/local_rules/2022
%20CIVIL%20RULES%20LAED%20w%20Amendments%203.1.
22.pdf (last accessed Aug. 10, 2024); see
https://www.laed.uscourts.gov/sites/default/files/forms/1983.pdf
(last accessed Aug. 10, 2024).
See M.D. La. Local Rules 5(d) and 16(a) at
https://www.lamd.uscourts.gov/sites/default/files/pdf/2019Local
Rules.pdf (last accessed Aug. 10, 2024); see
https://www.lamd.uscourts.gov/sites/default/files/1983COMPLA
INTFORM-REVISED2014.pdf (last accessed Aug. 10, 2024).
30
in 1996, which was expressly intended to curtail the
volume of Section 1983 litigation by prisoners across
the country. See Woodford v. Ngo, 548 U.S. 81, 84
(2006).
Thus, the fact that there is a high volume of
Section 1983 claims in federal courts in Louisiana
despite the application of Louisiana’s one-year
limitations period rebuts any notion that a one-year
limitations period is inadequate for Section 1983
claims. Congress’s adoption of a statute that imposes
additional procedural burdens upon incarcerated
individuals who wish to file Section 1983 claims also
disproves Brown’s assertion that procedural burdens,
even onerous ones like those imposed under the PLRA,
are inconsistent with Congress’s intent for Section
1983 claims.
Brown and his amici’s arguments about how
purportedly difficult it is to prepare and file civil rights
lawsuits and to obtain counsel willing to do so are
exaggerated. These arguments ignore numerous facts
that undermine their claims.
Brown and his amici ignore the provision in
Section 1988 allowing for the recovery of attorneys’
fees for prevailing parties in Section 1983 litigation.
This provision allows successful plaintiffs to almost
always receive an award of attorneys’ fees, while
successful defendants can only receive attorneys’ fees
awards for defending against frivolous claims. Thus,
Congress has provided plaintiffs a strong incentive to
file Section 1983 claims, with little risk of being held
liable for the defendant’s attorney’s fees. See Fox v.
Vice, 563 U.S. 826, 832-841 (2011).
31
Louisiana’s
tolling
provision,
the
jurisprudential doctrine of contra non valentem,
applies to Section 1983 claims. See Hardin, 490 U.S.
at 527-544; Burge v. Parish of St. Tammany, 996 F.2d
786, 788-789 (5th Cir. 1993). Though this doctrine
does not apply to Brown’s claim and Brown has not
attempted to argue that it does, it can provide Section
1983 plaintiffs with an extension of the limitations
period for their claims.
State public records laws provide plaintiffs with
access to numerous state and local government
records that can be used by plaintiffs in preparation
for filing a Section 1983 suit – both for obtaining facts
relevant to their claims and for obtaining the
identities of potential defendants. In Louisiana, for
example, the Louisiana Public Records Law (LPRL)
provides access to numerous records, with short
response deadlines for public entities to respond to
public records requests, summary proceedings for
resolving suits based on the LPRL, and available
awards of attorneys’ fees, costs, and damages for
requesting parties who prevail in recovering
improperly withheld materials in such suits. See La.
R.S. §§ 44:1(A)(2)(a), 44:32, 44:33, and 44:35.
Federal Rule of Civil Procedure 15(a)(1)
guarantees plaintiffs at least two chances to plead
their case against a defendant. FRCP 15(a)(2) also
provides for a liberal policy of permitting additional
amendments thereafter. See Foman v. Davis, 371 U.S.
178, 182 (1962). Brown and his amici’s arguments
regarding the purported difficulty of pleading Section
1983 claims ignore the fact that this liberal
amendment policy often provides plaintiffs numerous
32
opportunities to attempt to plead their case before a
court will make a final ruling on a defendant’s motion
testing the sufficiency of the complaint.
C. Stare decisis requires rejection of Brown’s
arguments and weighs against taking this
case.
As set forth above, the district court and the
Fifth Circuit correctly decided this case under this
Court’s existing, longstanding precedents that have
correctly interpreted Sections 1988, 1983, and 1658.
Accepting Brown’s arguments would require
overturning multiple precedents of this Court,
including but not limited to O’Sullivan, Robertson,
Burnett, Wilson, Felder, Owens, and Jones.
Because accepting Brown’s arguments would
require overturning the longstanding precedents of
this Court under which the lower courts decided this
case, stare decisis considerations are also relevant to
whether the Court should take this case.
i.
This case involves statutory stare
decisis, where the doctrine is
strongest.
The precedents that would be abrogated if
Brown’s arguments were accepted are statutory
precedents because they are interpretations of Section
1988, Section 1983, and Section 1658.
Stare decisis is at its strongest in this context.
Stare decisis “carries enhanced force when a decision .
. . interprets a statute [because] critics of [the Court’s]
ruling can take their objections across the street, and
Congress can correct any mistake it sees.” Kimble, 576
33
U.S. at 456. Under statutory stare decisis, the Court’s
decisions interpreting statutes “effectively become
part of the statutory scheme, subject (just like the rest)
to congressional change.” Id. Unless there is “special
justification [to overturn them], they are balls tossed
into Congress’s court, for acceptance or not as that
branch elects.” Id.
As stated above, the “ball” of the Court’s
borrowing precedents under Section 1988 was “tossed”
to Congress shortly after Wilson and Owens in the
form of the FCSC’s recommendation to do away with
those precedents. Id. But Congress expressly rejected
that recommendation and left those precedents in
place by enacting Section 1658. See Jones, 541 U.S. at
382.
ii.
The stare decisis factors weigh in
favor of denying the Petition and
maintaining existing precedent.
Under stare decisis, there are multiple factors
to consider in deciding whether to overturn precedent.
See Dobbs v. Jackson Women’s Health Org., 597 U.S.
215, 263-290 (2022).
The most important of these factors is the
reliance factor. See id. This factor asks whether
overturning precedent “would dislodge settled rights
and expectations,” such as when parties “have been
acting on the assumption that they are protected” by
existing precedent. Hilton v. S. Car. Pub. Railways
Com’n., 502 U.S. 197, 202-203 (1991).
The Court’s existing, longstanding “borrowing”
precedents under Section 1983 that require
application of Louisiana’s one-year prescriptive period
34
to Section 1983 claims in Louisiana have created
substantial reliance interests that would be disturbed
by overturning those precedents. Statutes of
limitations are “fundamental to a well-ordered judicial
system,” and they create “settled expectations that a
substantive claim will be barred without respect to
whether it is meritorious.” Tomanio, 446 U.S. at 487.
Congress agreed in rejecting a retroactive, uniform
four-year statute of limitations for Section 1983
claims. Again, Congress was concerned that doing so
“would threaten to disrupt the settled expectations of
a great many parties.” H.R. Rep. 101-734, at 24 (1990).
That led Congress to enact Section 1658 as a uniform
federal statute of limitations only for new claims and
leave in place borrowed state statutes of limitations
like Louisiana’s one-year statute of limitations for
Section 1983 claims under Wilson and Owens. See
Jones, 541 U.S. at 382.
Accepting Brown’s arguments would resurrect
old, stale claims that government entities and officers
have thought – with good reason – were time-barred.
See Harper v. Virginia Dept. of Taxation, 509 U.S. 86,
97 (1993) (the Court’s decisions must be given “full
retroactive effect” as to “all events, regardless of
whether such events predate or postdate [the Court’s
decision]”). This would lead to an influx of new,
previously time-barred Section 1983 litigation.
One consequence would be a major negative
effect on the ability of state and local governments to
accurately budget for the future and on their existing
budgets. Government entities often engage in detailed
budgeting processes for their projected potential
liability resulting from litigation. See, e.g., Newman
35
Marchive Partnership v. Hightower, 735 F. Supp. 2d
483, 488-490 (W.D. La. 2009) (describing the City of
Shreveport’s budgeting process for potential claims
and judgments).
Obviously, resurrecting up to three years of
Section 1983 claims that government entities
previously thought were time-barred would have a
negative impact on government budgeting processes
and reasonable expectations for potential litigation
liability for the hundreds of local government entities
in Louisiana and the many thousands of others across
the country in other states. Ultimately, taxpayers
would be forced to shoulder this unexpected burden,
and the sudden influx of new, unliquidated potential
liabilities for government entities would impair their
ability to perform their governmental functions. Of
course, such an influx of additional Section 1983
litigation would also impose a substantial burden on
the federal courts.
Another consequence would be the impairment
of individual government officers’ ability to perform
their jobs. Both the prospect of potential litigation
liability and the process of litigation itself result in
“distraction of officials from their governmental duties
[and] inhibition of discretionary action.” Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985). These burdens
would be even greater in the context of claims
regarding which there were “settled expectations” that
such claims were time-barred. See Tomanio, 446 U.S.
at 487.
Accepting Brown’s position would also worsen
an existing retention and hiring crisis in the law
36
enforcement profession – a profession that already
faces the major retention and hiring deterrent that it
requires risking one’s life every day. According to a
2023 survey of law enforcement agencies across the
country by the Police Executive Research Forum, law
enforcement “agencies are losing officers faster than
they can hire new ones,” with resignations and
retirements of existing officers substantially spiking
in recent years.10 Subjecting officers to the burdens of
litigation and trial results in “deterrence of able people
from public service.” Mitchell, 472 U.S. at 526.
Accepting Brown’s arguments and generating an
influx of new Section 1983 litigation would exacerbate
this disturbing trend, to the detriment of public safety.
Accepting Brown’s argument that Section
1658’s four-year statute of limitations applies to all
Section 1983 claims would also result in the
immediate extinction of Section 1983 claims in the
three states (Maine, Missouri, and North Dakota) that
have general or residual limitations periods for
personal injury tort actions that are longer than four
years. Pet. App. 44a-48a; see Harper, 509 U.S. at 97.
Thus, any Section 1983 claimant in those states who
relied upon the Court’s longstanding precedents in
waiting to file suit until more than four years after
their claims accrued would have their claims
immediately extinguished.
There is no “special justification” for
overturning the statutory precedents of this Court on
Police Executive Research Forum, 2023 Membership Survey
Results (April 1, 2023), https://www.policeforum.org/staffing2023
(last accessed Aug.. 8, 2024).
10
37
which many parties (both potential plaintiffs and
potential defendants) have relied – particularly when
Congress has expressly decided to leave those
precedents in place. Kimble, 576 U.S. at 456; see Jones,
541 U.S. at 382.
CONCLUSION
Brown’s Petition should be denied.
Respectfully submitted,
James Ashby Davis
Counsel of Record
James R. Sterritt
COOK, YANCEY, KING & GALLOWAY, APLC
333 Texas St. Suite 1700
Shreveport, LA 71101
(318) 221-6277
ashby.davis@cookyancey.com
Counsel for Respondent Javarrea Pouncy
August 20, 2024
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.