Petition — Meyer v. Frank

Supreme Court of the

October Term, 1976

—e

dt 7671736

WALTER J. MEYER,

Petitioner,

vs.

LOUIS J. FRANK, Commissioner of Police, Nassau County

Police Department, and CHRISTOPHER QUINN, Trial

Commissioner and Inspector, Nassau County Police

Department.

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

FREDERICK A. ROSSETTI

DAVID B. AMPEL, IRA LEITEL, Of Counsel

Attorneys for Petitioner

103 Park Avenue

New York, New York 10017

(212) 889-8560

(9629) LUTZ APPELLATE PRINTERS, INC.

Law and Financial Printing

South River, N.J. New York, N.Y. Philadelphia, Pa. Washington, D.C.

(201)257-6850 (212) 563-2121 (215) 563-5587 (202) 783-7288

=,

—

la &.

cnt

Fa

her! bs

‘Se

a

TABLE OF CONTENTS

Page

GE GE ce kiadbn boc vlnsscombssdeuc GdubbenGs bs oulet 2

PEE GRUKECERN SSDS 0Rb0 ceh esos nodes edeenasebene < 2

i cols le Ge db evet dine aeee dulbie Chenee 2

DRMOMNSS TRVONVER ccc cccccceccvecccvecsocesecccceecces 2

PE Sedan eesesdesecsecdhe vessecesncdoasecegaqece 6

es eee WR Se UE, cnvcepancuncdenonenesss 9

ERE “Coca se boncasheudenesevncucdccenneeseaeneess 12

TABLE OF CITATIONS

Cases Cited:

Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975)

enh ak 6 hinkid.cess Meee s cebb oa teases 6s Geo eeeee 9, 10

Mizell v. North Broward Hosp. Dist., 427 F.2d 468 (Sth Cir.

1970), reh. en banc den. (1970) ............ 2, 9, 10, 1!

Lombard v. Bd. of Educ., 502 F.2d 631 (2d Cir. 1974) ... 10

Monroe v: Pape, 365 U.S. 167 (1961) ..............066. 11

Meyer v. Frank, 409 F. Supp. 1240 (E.D.N.Y. 1976) ..... 2

2a, a + eee, oe) eee 2

Contents

Page

Statutes Cited:

SB USS. GELS: os oss we ogo shin tie cited sdneene 2

42 U.S.C. GOGGS «ni ccieces cotntancaaseatuaeshee 2, 3, 8

42 U.S.C. GUISES 2 ncccccskvivenss edeeensectanlpaaeee 2, 3, 8

United States Constitution Cited:

Fe AGOREMINEE occ cccccnis serene teseesubeteneennen 8

Fourtecnt Amsewienetll. .66cccsisscestcanbviteraveveen 8

Rules Cited:

New York State Civil Practice Law and Rules:

Section 200) 03s... .sasdsadsaneitaeenenans 2, 5, 8, 9

ee th LMT OE Sr 2, 5

Federal Rules of Civil Procedure, Rule 12(b) ............ 8

APPENDIX

Appendix A — Opinion of the United States District Court

for the Eastern District of New York Dismissing the

Commpheitt on cc ccccccsvceces dbus seb eukandn cease la

Appendix B — Opinion of the United States Court of Appeals

for the Second Cisgel oc ciccoscevduavensanewetnens cane 8a

Appendix C — Order of the United States Court of Appeals

Denying En Banc Reconsideration ................00e0+: 20a

In The

Supreme Court of the Huited States

October Term, 1976

No.

WALTER J. MEYER,

Petitioner,

VS.

LOUIS J. FRANK, Commissioner of Police, Nassau County

Police Department, and CHRISTOPHER QUINN, Trial

Commissioner and Inspector, Nassau County Police

Department.

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

To: The Honorable, the Chief Justice of the United States

and the Associate Justices of the Supreme Court.

Petitioner, Walter J. Meyer, respectfully prays that a writ of

certiorari issue to review the judgment of the United States

Court of Appeals for the Second Circuit made final in this

proceeding on March 9, 1977.

OPINIONS BELOW

The opinion of the District Court for the Eastern District of

New York, rendered by Judge Mark A. Costantino is reported

at 409 F. Supp. 1240 (E.D.N.Y. 1976). That of the Court of

Appeals, affirming the judgment of the District Court is not yet

reported. The order of the Second Circuit, denying en banc

reconsideration was made on March 9, 1977.

JURISDICTION

The judgment of the Court of Appeals for the Second

Circuit was entered on January 12, 1977. A timely petition for

rehearing en banc was denied on March 9, 1977.

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. Section 1254(1).

QUESTIONS PRESENTED

1. Do considerations of federalism, the overriding interest

of providing a federal forum to redress federal constitutional

rights independent of any remedy afforded by state law, and the

desire to prevent unnecessary initiation of civil rights actions in

the federal courts justify adoption of the ruling of the Fifth

Circuit in Mizell v. North Broward Hospital District, 427 F.2d

468 (Sth Cir. 1970) providing for tolling of the statute of

limitations of a civil rights action during the period of state

court litigation between the same parties designed to resolve

the alleged wrongs committed by state officials against state

employees under state law?

STATUTES INVOLVED

The statutes involved, although their terms are not

dispositive, are Title 42, U.S.C. §§ 1983 and 1985, and New

York Civil Practice Law and Rules §§ 214 and 217, which state,

in relevant part:

“Title 42 U.S.C. §1983. Civil Action for

Deprivation of Rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory, subjects, or causes to be

subjected, any citizen of the United States or

other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for

redress.”

“Title 42 U.S.C. §1985. Conspiracy to Interfere

With Civil Rights — Preventing Officer From

Performing Duties

(1) If two or more persons in any State or

Territory conspire to prevent, by force,

intimidation, or threat, any person from

accepting or holding any office, trust, or place of

confidence under the United States, or from

discharging any duties thereof; or to induce by

like means any officer of the United States to

leave any State, district, or place, where his

duties as an officer are required to be performed,

or to injure him in his person or property on

account of his lawful discharge of the duties of

his office, or while engaged in the lawful

discharge thereof, or to injure his property so as

to molest, interrupt, hinder, or impede him in the

discharge of his official duties;

(2) If two or more persons in any State or

Territory conspire to deter, by force,

intimidation, or threat, any party or witness in

4

any court of the United States from attending

such court, or from testifying to any matter

pending therein, freely, fully, and truthfully, or to

injure such party or witness in his person or

property on account of his having so attended or

testified, or to influence the verdict, presentment.

or indictment of any grand or petit juror in any

such court, or to injure such juror in his person

or property on account of any verdict,

presentment, or indictment lawfully assented to

by him, or of his being or having been such juror;

or if two or more persons conspire for the

purpose of impeding, hindering, obstructing, or

defeating, in any manner, the due course of

justice in any State or Territory, with intent to

deny to any citizen the equal protection of the

laws, or to injure him or his property for lawfully

enforcing, or attempting to enforce, the right of

any person, or class of persons, to the equal

protection of the laws;

(3) If two or more persons in any State or

Territory conspire or go in disguise on the

highway or on the premises of another, for the

purpose of depriving, either directly or indirectly,

any person or class of persons of the equal

protection of the laws, or of equal privileges and

immunities under the laws; or for the purpose of

preventing or hindering the constituted

authorities of any State or Territory from giving

or securing to all persons within such State or

Territory the equal protection of the laws; or if

two ar more persons conspire to prevent by

force, intimidation, or threat, any citizen who is

lawfully entitled to vote, from giving his support

or advocacy in a legal manner, toward or in favor

of the election of any lawfully qualified person as

5

an elector for President or Vice President, or as a

Member of Congress of the United States; or to

injure any citizen in person or property on

account of such support or advocacy; in any case

of conspiracy set forth in this section, if one or

more persons engaged therein do, or cause to be

done, any act in furtherance of the object of such

conspiracy, whereby another is injured in his

person or property, or deprived of having and

exercising any right or privilege of a citizen of the

United States, the party so injured or deprived

may have an action for the recovery of damages,

occasioned by such injury or deprivation, against

any one or more of the conspirators.”

“N.Y. CPLR, §214.

The following actions must be commenced within

three years:

2. ...an action to recover upon a liability,

penalty or forfeiture created or imposed by

statute except as provided in sections 213 and

RTE

“N.Y. CPLR §217. A proceeding against a body

or officer must be commenced within four

months after the determination to be reviewed

becomes final, or after the body or officer

refuses, after demand, to perform its duty.”

6

STATEMENT

Petitioner, a veteran and resident of Nassau County, was

duly appointed as a Patrolman to the Nassau County Police

Department (hereinafter referred to as “the Department”) on

October I, 1953. In 1960 he was promoted to the rank of

Detective in the Department. Petitioner maintained a totally

unblemished record in the Department, faithfully complying

with all rules and regulations thereof, throughout his almost

eighteen (18) year career.

On June 25, 1970, a Nassau County Grand Jury indicted

petitioner and another Department Detective for the crime of an

attempt ‘0 commit the crime of grand larceny in the first degree.

Both men pleaded not guilty to this charge. This same day

petitioner was suspended, without pay, from the Department;

his guns and badge were, accordingly, removed.

On July 2, 1970, petitioner was charged by the Department

with certain violations of the Department’s Rules and

Regulations based upon and with the specification limited to the

identical charge and allegation for which petitioner stood

criminally indicted. Similarly, a plea of not guilty was entered in

this civil proceeding.

A departmental trial on these charges was first scheduled

for November 30, 1970 and adjourned on several occasions to

April 8, 1971 due to petitioner's counsel’s actual engagement,

and upon request of petitioner's counsel. On April 8th the

hearing was adjourned to April 22nd, at the request of the

defendants.

On April 22, 1971, petitioner’s counsel requested another

adjournment. When such motion was denied by respondent

Quinn, petitioner was advised by his counsel to stand mute and

without the aid of counsel so as not to incriminate himself or

otherwise prejudice his position in the then pending criminal

7

prosecution. Petitioner's counsel feared that petitioner would be

called as a witness in the civil proceeding, and thus be forced to

give testimony possibly prejudicial to his defense in the pending

criminal action. Nevertheless, at the respondent Quinn’s orders,

the departmental trial commenced that day.

As a result of petitioner standing mute and alone

throughout the departmental trial, he was found guilty of the

charges by respondent Quinn, and dismissed from the

Department by order of respondent Frank on June 4, 1971.

This was the first and only instance to date in the history o.

the County of Nassau that a police officer facing both criminal

and resulting departmental charges was forced to trial at the

administrative level before his criminal trial took place.

The criminal case against petitioner was called to trial for

the first time on January 5, 1972. The petitioner was tried jointly

with Detective Cullinan in the Supreme Court of the State of

New York, Nassau County. A jury was selected on January 10,

and found a verdict of not guilty as to both men on January 14,

1972.

In August 1971, petitioner’s application pursuant to Article

78 of the New York CPLR to review and annul respondents

determination dismissing petitioner from the Department on the

sole and exclusive ground that the respondents arbitrarily and

unreasonably deprived petitioner of his right to counsel of his

chsosing by virtue of their failure to grant petitioner a further

adjournment when petitioner's counsel was actually engaged,

was dismissed in the New York State Supreme Court, Nassau

County. This judgment was affirmed, without opinion, by the

Appellate Division, Second Department on October 10, 1972. In

July 1973, motion for leave to appeal was denied by the New

York State Court of Appeals.

On January 15, 1974 a verified petition on behalf of the

petitioner was served on respondents asking for a rehearing and

reconsideration of the dismissal of petitioner from the

Department. On April 9, 1974, petitioner was advised in writing

that his application would not be considered.

By service upon the respondentson June 10, 1975 of a

summons and complaint, petitioner in the instant proceeding

sought declaratory relief founded upon Title 42, United States

Code, Sections 1983 and 1985 to redress the deprivation under

color of law, of rights, privileges and immunities secured by the

Constitution and laws of the United States. More specifically,

sought to be redressed was the fundamental right not to be

compelled to give testimony which could be used in criminal

prosecution, as guaranteed by the Fifth Amendment to the

Constitution of the United States. Petitioner sought to annul the

actions of the respondents,who, under color of law, and under

color of their authority as police officials of Nassau County,

subjected petitioner to the deprivation of his right not to be

compelled to give testimony which could be used to prosecute

him criminally, and not to be deprived of the personal liberty to

pursue a calling of his choice without due process of law, in

violation of the Fourteenth Amendment to the Constitution of

the United States.

The respondents moved pursuant to Rule 12(b) of the

Federal Rules of Civil Procedure to dismiss the complaint, inter

alia, on the ground that the action was not timely instituted, as

provided by Section 214(2) of the New York State Civil Practice

Law and Rules.

By memorandum and order dated March 11, 1976 the

District Court granted therespondents’ motion to dismiss on the

ground that the petitioner's action was barred by the statute of

limitations.

Petitioner sought a ruling that the concededly applicable*

* Title 42 U.S.C. Sections 1983 and 1985 do not contain specific statutes

of limitations. Thus, the federal courts apply the most analogous state statute

of limitations. However, federal courts are not bound by state rules regarding

tolling of the state statute of limitations. Aaiser v. Cahn, 510 F.2d 282 (2d Cir.

1974).

9

New York State statute of limitations, CPLR §214(three years)

had been tolled by the pursuit by him of state administrative and

judicial remedies seeking the same result. The District Court

held that Johnson v. Railway Express Agency Inc., 421 U.S. 454

(1975), barred such relief, and dismissed the complaint (see

Appendix A, infra, at 1a).

The Second Circuit affirmed the judgment of the District

Court by a two-to-one decision (Smith, Timbers, J.J, Oakes,

dissenting) (Appendix B, infra, at 8a). Both majority and

dissenting opinions disagreed with the District Court conclusion

that Johnson v. Railway Express Agency Inc., supra, mandated

dismissal. Affirmance was based upon a reluctance to follow the

Fifth Circuit's decision in Mizell v. North Broward Hosp. Dist.,

427 F.2d 468 (5th Cir. 1970), reh. en banc den. (1970) upon the

facts presented. Judge Oakes would have followed Mizell

(Appendix at 16a).

REASONS FOR GRANTING THE WRIT

The writ should be granted to protect three fundamental

and important interests:

|. To preserve to litigants their rights to pursue the

supplemental remedies afforded by the Civil Rights Act;

2. To preserve to the states the opportunity to resolve

through their own administrative and judicial remedial

machinery questions of state law, and thus promote the interests

of federalism, comity and abstention;

3. To resolve the conflicts between the decision of the

Second Circuit in the instant case, and that of the Fifth Circuit

in Mizell v. North Broward Hosp. Dist., 427 F.2d 468 (Sth Cir.

1970), reh. en banc den. (1970) and thus to promote uniformity

and predictability within the federal court system.

10

All of these interests are endangered by the Second Circuit's

refusal to apply Mizell, supra, in this case; the resultant

uncertainty of the law requires resolution of the issues squarely

presented to this Court.

The issues herein are similar to those decided by this Court

in Johnson v. Railway Express Agency, Inc., supra, insofar as

both cases involved the question of whether the commencement

of one mode of remedial action tolls the period of limitation

applicable to an action based on the same facts. One important

difference between the two cases is that while the Court in

Johnson refused to “infer any positive preference”, Johnson v.

Railway Express Agency, Inc., 421 U.S. at 461, between two

modes of available federal redress, the principles of federalism,

present herein, compel the federal courts to encourage the

resolution of the issues in state court prior to institution of

federal suit. Particularly, the instant suit involves the clear

preference for state resolution of alleged wrongs committed by

state officials against state employees.

The Fifth Circuit, in Mizell, relied heavily on principles of

federalism in tolling the statute of limitations applicable to a

federal civil rights action during state judicial action seeking the

same results in order to encourage the utilization of state

procedures to redress alleged wrongs of state officials. Although

these principles appear consonant with previous Second Circuit

decisions enunciating the interests and protections applicable to

actions under the Civil Rights Act, cf., Lombard v. Bd. of

Educ., 502 F.2d 631 (2d Cir. 1974) and Kaiser v. Cahn, 510

F.2d 282 (2d Cir. 1974), the majority of the court herein declined

to follow Mizell and refused to toll the statute of limitations.

The majority claimed that its refusal to follow Mizell was

predicated upon the fact that petitioner herein raised a federal

question in his state action, although the federal question was

not the same as that sought to be adjudicated in the federal

action. That this is a distinction without a difference is clearly

seen from Judge Coleman's dissent in Mizell, which notes that

Mizell’s state actions encompassed due process considerations.

Mizell, supra at 475-76. Thus, the majority opinion has, in spite

of its disclaimer of intention to do so, rejected Mizell.

The dissenting opinion of Judge Oakes below recognized

both the power of the federal courts to create a tolling rule, and

the preferability of creating such a rule on the facts here

presented. According to Judge Oakes, the adoption of the Mizell

rule would encourage state solutions to state problems, avoid

unnecessary filings of §1983 actions, and further the underlying

purpose of the Civil Rights Act (Appendix at 17a).

The practical implications of this rejection of Mizell have

far-reaching and disturbing consequences. To avail himself of

the rights afforded him by the state and federal laws, each

litigant allegedly wronged by a state official is now forced to

pursue both remedies based on the same set of facts and seeking

identical results, simultaneously, or risk loss of the substantial,

independent and supplementary federal right. Monroe v. Pape,

365 U.S. 167 (1961). The right to federal adjudication of federal

questions predicated on the Civil Rights Acts will be barred

unless federal suit is begun, in most cases, prior to resolution of

state questions by state courts. Two suits based on the same

facts will have to be simultaneously litigated, in spite of the very

real possibility that resolution of the state claims would obviate

the need for consideration of the federal claims.

Such duplicity will result in the unnecessary initiation of

federal Civil Rights Act suits during the course of parallel state

court action, increasing the burdens on our overworked federal

courts.

If given the opportunity, petitioner will present to this

Court a well-documented argument that adoption of the Mizell

solution to this problem will foster and preserve the venerated

principles of federalism while preserving to litigants the

opportunites afforded them to pursue all rights granted by law.

12

CONCLUSION

For the foregoing reasons, it is respectfully submitted that

this Court should issue its writ of certiorari to review the

decision below.

Respectfully submitted,

s/ Frederick A. Rossetti

Attorney for Petitioner

David B. Ampel

Ira Leitel

Of Counsel

APPENDIX A — OPINION OF THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT OF

NEW YORK DISMISSING THE COMPLAINT

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

WALTER J. MEYER,

Plaintiff,

v.

LOUIS J. FRANK, Commissioner of Police, Nassau County

Police Department, and CHRISTOPHER QUINN, Trial

Commissioner and Inspector, Nassau County Police

Department,

Defendants.

75-C-898

ROBERT J. CULLINAN,

Plaintiff,

v.

LOUIS J. FRANK, Commissioner of Police, Nassau County

Police Department, and CHRISTOPHER QUINN, Trial

Commissioner and Inspector, Nassau County Police

Department,

Defendants.

2a

Appendix A

75-C-1446

MEMORANDUM AND ORDER

COSTANTINO, D.J.

The motions to dismiss in the two above named cases

involve identical legal issues. Since the underlying facts are

likewise identical, both motions are considered in this opinion.

Before examining the legal issues involved, a brief recitation

of the facts is necessary. Messrs. Cullinan and Meyer were long-

standing members of the Nassau County Police Department

when, in 1970, a Nassau Grand Jury indicted them both for

attempted grand larceny in the first degree. Both men pled not

guilty.

On the day of indictment both C .wzan and Meyer were

suspended from the police department without pay;

subsequently, on July 2, 1970 both men were charged by the

department with violations of department regulations. They

both entered not guilty pleas in this civil proceeding.

A departmental trial scheduled for November 30, 19/0 was

adjourned several times until April 22, 1971. On that date,

plaintiffs’ requests for a further adjournment were denied and

the departmental trial commenced.

On advice of counsel, both men appeared without counsel

and refused to testify on their own behalf. Defendant Quinn,

who was the trial examiner, found them guilty of the charges.

On June 4, 1971 defendant Frank ordered that they be dismissed

from the force.

3a

Appendix A

In January 1972, the criminal case went to trial. On January

14, the jury returned a verdict of not guilty as to both men.

Both of the plaintiffs herein brought Article 78 proceedings

in the state court seeking to set aside their removal on the

grounds that they were denied their right to counsel in the

administrative hearing. The Article 78 proceedings were

dismissed by the New York State Supreme Court, Nassau

County in August 1971. The Appellate Division, 2d Department

affirmed in October 1973 and in May 1973 Cullinan was denied

leave to appeal by the Court of Appeals.' Later, both plaintiffs

petitioned defendant Frank to reconsider his order of dismissal.

Reconsideration was denied. Both the New York State Supreme

Court and the Appellate Division affirmed the denial of

reconsideration.

Plaintiffs filed these actions alleging jurisdiction pursuant to

28 U.S.C. §1343(3) and 42 U.S.C. §§1983, 1985. Meyer’s suit

was commenced by service of summons and complaint on June

10, 1975. Cullinan’s summons and complaint were served on

September 5, 1975. The gravamen of plaintiffs’ complaints is

that the departmental trial violated their Fifth Amendment

privilege against self-incrimination and their Fourteenth

Amendment right to due process of law.

Defendants Frank and Quinn have moved to dismiss the

complaints on various grounds. Since this court agrees that the

action is barred by the statute of limitations, the other grounds

need not be considered.

In determining the timeliness of an action brought under

the Civil Rights Act, the federal court borrows the most

analogous state statute of limitations. Swan v. Board of Higher

1. The Court of Appeals denied Meyer leave to appeal in July 1973.

4a

Appendix A

Education, 319 F.2d 56 (2d Cir. 1963); see O'Sullivan v. Felix,

233 U.S. 318 (1914). The three-year statute of limitations

prescribed by New York CPLR §214(2) (McKinney’s 1963) is the

most appropriate state statute for the cases at bar. See Ortiz v.

LaVallee, 442 F.2d 912, 914 (2d Cir. 1971).

Since plaintiffs were dismissed from the Police Department

in June of 1971 there is no question that, absent a tolling of the

statute, these actions would be barred by the statute of

limitations. Plaintiffs rely on Kaiser v. Cahn, 510 F.2d 282 (2d

Cir. 1974) and Mizell v. North Broward Hospital District; 427

F.2d 468 (Sth Cir. 1970), reh. en banc den. (1970), in arguing

that the statute was, or should have been, tolled by bringing the

state court action, and that it did not begin to run again until

mid 1973 when leave to appeal to the Court of Appeals was

denied.

Nothing in Kaiser compels a decision that the statute should

be tolled by the state court action. Mizell did not explicitly rule

on the question of whether the statute of limitations therein

should have been tolled, but merely remanded to the district

court for reconsideration of that question in light of the federal

policies involved.

The Mizell approach has been criticized and sharply limited

by other courts, see, e.g., both the District Court and Court of

Appeals decisions in Ammlung v. City of Chester, 355 F. Supp.

1300 (E.D. Pa. 1973); affd 494 F.2d 811 (3d Cir. 1974).

Moreover, in Blair v. Page Aircraft Maintenance, 467 F.2d 815

(Sth Cir. 1972), Judge Tuttle, who wrote the majority opinion in

Mizell, stated that the Sth Circuit Court of Appeals had

overruled Mizell sub silentio by failure to consider its

application to the facts in Blair, 467 F.2d at 821 (Tuttle, J.,

dissenting). It is not necessary, however, to determine to what

extent Mizell has been overruled by Blair or limited by

Sa

Appendix A

Ammlung because the Supreme Court has recently set forth

guidelines to be considered in determining whether federal

courts should fashion a tolling provision when dealing with a

state statute of limitations. Johnson v. Railway Express Agency,

421 U.S. 454 (1975).

In Railway Express, plaintiff argued that the state statute of

limitations, applicable to his §1981 claim, should have been

tolled by his timely filing of an employment discrimination

charge based on the same facts with the Equal Opportunity

Commission. The Court began its analysis with the proposition

that although federal policy considerations may sometimes

overrule inconsistent state statutes of limitation, federal courts

generally should rely on the state’s “wisdom” as to time

limitations and tolling periods. 421 U.S. 464-65. The Court

expressly noted, however, that the filing of a Title VII claim was

not a prerequisite to bringing a §1981 action, and that the two

avenues of relief were independent, 421 U.S. at 460. Johnson

(the plaintiff in that case) could have filed his §1981 action at

any time after his cause of action had accrued; had he done so

he could then have asked that the §1981 proceedings be stayed

until the Title VII claim was determined. 421 U.S. at 465-66.

Accordingly, the court found no persuasive federal policy

requiring that the statute be tolled, and therefore held that the

action was barred by the statute of limitations.

The analysis in Railway Express leads to a_ similar

conclusion in the cases at bar. In interpreting the Civil Rights

Act, the Supreme Court has pointed out that

[t]he federal remedy is supplementary to the state

remedy, and the latter need not be first sought

and refused before the federal one is invoked.

Monroe v. Pape, 365 U.S. 167, 183 (1961).

6a

Appendix A

Furthermore, an adverse decision in state court is not

necessarily a bar to the federal suit. Lombard v. Bd. of

Education, 502 F.2d 631 (2d Cir. 1974). In Lombard, plaintiff

raised issues of statutory construction in the state court and then

sought to raise constitutional issues in the federal court. In

holding that the federal suit was not barred by the doctrines of

res judicata or collateral estoppel, the Court of Appeals said:

Here, even if we would like to put all the issues in

the same court, we are better off not to compel

the plaintiff to seek constitutional redress in the

state court or statutory construction in the

federal court [citations omitted] That is what we

think choice of forum means in Civil Rights Act

cases. 502 F.2d at 636.?

Under Lombard, plaintiffs’ right to bring these claims at all,

is directly dependent upon a finding that the claim advanced in

state court was different from the claim advanced in federal

court. If, however, the claims are different and alternative to

each other, then the reasoning in Railway Express must control.

As was true in Railway Express, plaintiffs could have filed their

suits at any time after the cause of action accured. By failing to

do so, they, like the plaintiff in Railway Express have “slept” on

their rights.

2. The cases at bar are clearly distinguishable from Lombard in that here

plaintiffs have raised one constitutional issue (right to be represented by

counsel) in state court and now seek to raise two other constitutional issues

(right against self incrimination and right not to be deprived of their calling

without due process of law) in federal court. For purposes of determining

whether the suit is time barred, it will be assumed that plaintiffs may valid!y

raise these claims in federal court, nevertheless, it must be noted that plaintiffs

are arguably seeking two bites at the “cherry.” Lombard, supra at 637.

- —_— > te

Ta

Appendix A

in Railway Express, the Supreme Court adopted a narrow

view of the impact of that case on federal policies. 421 U.S. at

467, fn. 13. Whether the impact of the cases at bar is viewed

narrowly or broadly, no federal policy persuades this court that

the statute of limitations should be tolled under these

circumstances.

Accordingly, the motions to dismiss are granted.

s/ Costantino, D.J.

U. S. D. J.

APPENDIX B — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

UNITED STATES COURT OF APPEALS

For the Second Circuit

No. 66—September Term, 1976.

(Argued October 22, 1976 Decided January 12, 1977.)

Docket No. 76-7172

WALTER J. MEYER,

Plaintiff-Appellant,

v.

LOUIS J. FRANK, Commissioner of Police, Nassau County

Police Department, and CHRISTOPHER QUINN, Trial

Commissioner and Inspector, Nassau County Police

Department,

Defendants-Appellees.

Before:

SMITH, OAKES and TIMBERS,

Circuit Judges.

Appeal from judgment entered in the Eastern District of

New York, Mark A. Costantino, District Judge, 409 F. Supp.

1240, which dismissed complaint in a civil rights action as barred

by the three-year New York statute of limitations, the sole issue

OE ee ee he wy

2 =_

9a

Appendix B

being whether the statute of limitations should be tolled while

plaintiff pursued a remedy in the state courts.

Affi ned.

Ira Leitel, New York, N.Y. (David B. Ampel,

New York, N.Y., on the brief), for plaintiff-

appellant.

Joseph A. Demaro, Deputy County Atty. of

Nassau County, Mineola, N.Y. (James M.

Catterson, Jr., County Atty. of Nassau County,

Natale C. Tedane, Senior Deputy County Att.,

and Kenneth P. Morelli, Law Asst., Mineola,

N.Y., on the brief), for defendants-appellees.

Timbers, Circuit Judge:

The question presented on this appeal is whether in a civil

rights action under Sections 1983 and 1985 the applicable three-

year New York statute of limitations should be tolled during the

period plaintiff pursued a remedy in the New York state courts.

Under the circumstances of this case, we hold that it should not.

Accordingly, we affirm the judgment of the district court which

dismissed the complaint as time-barred.

Walter J. Meyer was a detective in the Nassau County

Police Department (the Department). On June 25, 1970 a

Nassau County grand jury indicted him and another detective

for attempted first degree grand larceny. On January |, 1972 a

jury acquitted Meyer of this charge.

Before the criminal trial began, the Department conducted

10a

Appendix B

and concluded administrative proceedings to dismiss Meyer. On

July 2, 1970, Meyer was charged with a violation of Department

rules. The departmental charges were based on the same conduct

charged in the indictment. A departmental trial initially was

scheduled for November 30, 1970. Repeated adjournments, all

except one due to the unavailability of Meyer’s counsel, resulted

in its postponement until April 22, 1971. On that date Meyer’s

counsel again was absent. His substitute counsel requested

another adjournment. The trial commissioner, appellee Quinn,

denied this request but informed Meyer that he could stand

mute. On the advice of his substitute counsel, Meyer did remain

mute while the Department presented its case. When the

Department rested, Quinn adjourned the trial until April 27 and

informed Meyer that he could present his case at that time.

When the hearing resumed on April 27, Meyer again stood

mute. Quinn found him guilty. On June 4, 1971, he was

dismissed from the Department.

Two months after his dismissal from the force, Meyer

commenced an Article 78 proceeding' in the Nassau County

Supreme Court to review the action which resulted in his

dismissal. His petition alleged various state law claims. It also

alleged that the Department's action in trying him without the

assistance of counsel of his choosing violated his fedcral

constitutional rights to counsel and to confront witnesses. On

July 15, 1971 the Article 78 petition was dismissed by Justice

Pittoni of the Nassau County Supreme Court. The Appellate

Division, Second Department, affirmed without opinion on

October 10, 1972, 40 App. Div. 2d 760, 336 N.Y.S.2d 239 (2nd

Dept. 1972) (mem.), and denied Meyer’s motion for reargument

1. Pursuant to N.Y. Civ. Prac. Law §7801 (McKinney 1963).

EE

Appendix B

on January 19, 1973. In July 1973 the New York Court of

Appeals denied leave to appeal’.

On June 6, 1975 Meyer commenced the instant civil rights

action in the Eastern District of New York.’ His complaint

alleged that his subjection to a departmental trial violated his

Fifth Amendment privilege against self-incrimination and that

his subsequent dismissal deprived him of the pursuit of his

calling without due process of law. On March 12, 1976 Judge

Costantino filed his opinion, 409 F.Supp. 1240, granting

appellees’ motion to dismiss the complaint as barred by the

applicable three year New York statute of limitations. From the

judgment entered the same day, this appeal was taken.

An action brought under the federal Civil Rights Act is

subject to the statute of limitations the state courts would apply

in an analogous state action. Accordingly, the three year New

York statute of limitations* governs Meyer’s instant §1983 claim.

Ortiz v. LaVallee, 442 F.2d 912 (2 Cir. 1971); Swan v. Board of

Education, 319 F.2d 56 (2 Cir. 1963).5 Since Meyer’s self-

2. On January 15, 1974 Meyer requested the Department to reconsider his

dismissal. The request was denied on April 9, 1974.

3. Pursuant to 42 U.S.C. §§1983 and 1985 (1970) and their jurisdictional

implementation, 28 U.S.C. §1343(3) (1970).

4. N.Y. Civ. Prac. Law §214(2) (McKinney Supp. 1975) which includes

actions “to recover upon a liability, penalty or forfeiture created or imposed by

statute... .”

5. We apply §214(2) to Meyer's §1985 claim as well. See generally Nevels

v. Wilson, 423 F.2d 691 (5 Cir. 1970) (per curiam); Wakat v. Harlib, 253 F.2d

59, 63-64 (7 Cir. 1958). Our conclusions below regarding the tolling of the

limitations period for the §1983 claim apply likewise to the §1985 claim.

12a

Appendix B

incrimination and due process causes of action accrued no later

than June 4, 1971, the date of his dismissal from the force, the

instant civil rights action commenced four years iater is time-

barred unless a tolling principle applies so as to excuse the year’s

delay. Meyer urges us to create a toll for the period during

which he pursued a remedy in the state courts. Specifically, he

urges us to toll the twenty-three month period from August 1971

to July 1973 so as to render the instant civil rights action timely.

It is well settled that the federal courts have the power to

toll statute of limitations borrowed from state law in appropriate

circumstances. Johnson v. Railway Express Agency, Inc., 421

U.S. 454, 465 (1975); Holmberg v. Armbrecht, 327 U.S. 392, 395

(1946); Moviecolor Ltd. v. Eastman Kodak Co., 288 F.2d 80 (2

Cir.), cert. denied, 368 U.S. 821 (1961). We recently have

affirmed the applicability of this principle in the context of a

§1983 cause of action. Kaiser v. Cahn, 510 F.2d 282, 286-87 (2

Cir. 1974).

Whether to toll in a particular case has been stated in terms

of whether application of the borrowed state statute of

limitations would frustrate the policy underlying the federal

cause of action asserted. Johnson v. Railway Express Agency,

Inc., supra, 421 U.S. at 465; Burnett v. New York Central R.R.,

380 U.S. 424, 426-27 (1965). The inquiry pursued in the cases,

however, is somewhat broader than this statement implies. In

practice, resolution of the tolling question involves striking a

balance between protection of the substantive federal policy

under consideration on the one hand and protection of the

policy behind the statute of limitations on the other hand. The

plaintiffs conduct — particularly his diligence in pressing his

claim — also is taken into account. Johnson v. Railway Express

Agency, Inc., supra, 421 U.S. at 465-67; UAW v. Hoosier

Cardinal Corp., 383 U.S. 696, 708 (1966); Burnett v. New York

13a

Appendix B

Central R.R., supra, 380 U.S. at 428; Blair v. Page Aircraft

Maintenance, Inc., 467 F.2d 815 (S Cir. 1972).

The remedial policy underlying §1983,° considered alone,

would not be impinged upon by applying the three year

limitations period here. Since §1983 plaintiffs are not required to

exhaust state remedies, Monroe v. Pape, supra note 6, at 183,

federal relief was available to Meyer all along. In consequence,

the gravamen of his argument in support of a toll lies in

federalism considerations of a general species. His theory is that

the strong federal interest in redressing deprivations of

constitutional rights manifested in §1983 conflicts with a

concomitant federal concern for encouraging the initial

utilization of state agencies and courts for the vindication of

wrongs committed by the state’s agents. These can be

accommodated, so the argument goes, only if a tolling principle

assures the potential state court litigant of the residual

availability of a §1983 action. The Fifth Circuit adopted this

reasoning in Mizell v. North Broward Hospital District, 427

F.2d 468 (5 Cir. 1970), and tolled the period during which a

§1983 plaintiff had challenged an administrative ruling within

the agency and in the state courts’.

6. The purpose of §1983, as explicated by the Supreme Court in Monroe

v. Pape, 365 U.S. 167, 173-74 (1961), is to provide a federal remedy for federal

constitutional rights where the remedy afforded by state law is either

inadequate or unavailable as a practical matter.

7. The Fifth Circuit held:

“{It] is clearly within the purpose of the Civil Rights Acts to

encourage utilization of state administrative and court

procedures to vindicate alleged wrongs under a state-created

cause of action before requiring a plaintiff to bring his

federal suit to prevent his being barred by a state statute of

limitations.” (emphasis added) 427 F.2d at 474.

l4a

Appendix B

Meyer invites us to apply Mizell here. Assuming arguendo

our agreement with the result reached there, the history of the

instant litigation forecloses application here of the full force of

the Fifth Circuit’s reasoning. Meyer did not restrict his Article

78 petition to claims grounded in state law. Alleged violations of

his Sixth Amendment rights to counsel and confrontation of

witnesses were at the core of his petition. This is not a case like

Mizell where the prior state court proceeding was directed at

obtaining relief through an action grounded solely in state law.*

Id. at 470-71, 474. The only thing Meyer has held in reserve has

been the federal court itself; federal law has played a principal

role all along. The result is that the policy of avoiding federal

interference with state affairs survives here in a diluted posture.

We turn now from the federal system interest consideration

to the other relevant consideration, i.e. statute of limitations

policy and Meyer’s conduct of the litigation.

The policy of repose behind the statute of limitations

protects defendants “by preventing surprises through the revival

of claims that have been allowed to slumber until evidence has

been lost, memories have faded, and witnesses have

disappeared.” Order of Railroad Telegraphers v. Railway

Express Agency, Inc., 321 U.S. 343, 348-49 (1944). It also

protects the courts by relieving “the burden of trying stale claims

when a plaintiff has slept on his rights.” Burnett v. New York

Central R.R., supra, 380 U.S. at 428. Meyer’s conduct is the sort

against which both of these considerations are directed.

8. We intimate no opinion as to how we would rule in a case

indistinguishable from Mizell.

~~

15a

Appendix B

Unlike Burnett,? where the plaintiff's cause of action was

precisely the same in two successive suits and the defendant

could not have relied on the policy of repose, this is a case where

Meyer has prosecuted two different actions. Upon the

conclusion of the state court action, which included state and

federal claims, appellees hardly could be said to have been put

on notice that an action in the federal court grounded on a

different constitutional theory would follow two years later. The

inference is just the opposite and brings to appellees’ side the

policy of repose.'®

Moreover, Meyer has slept on his rights “in a very real

sense.” Johnson v. Railway Express Agency, supra, 421 U.S. at

466. In Johnson, limitations ran on the plaintiff's §1981 action in

the mids of his efforts to obtain statutory relief from the Equal

Employment Opportunity Commission. The Supreme Court

faulted his conduct on the ground that a §1981 action could

have been brought at any time after his cause of action

9. The plaintiff in Burnett began a timely FELA action in a state court

only to have it dismissed for improper venue. The FELA limitations period run

out in the course of the state action. The Supreme Court held that the statute

should be tolled during the period of the pendency of the state action so as to

allow the plaintiff an action in the federal court. /d. 380 U.S. at 428.

10. Under Johnson v. Railway Express Agency, Inc., supra, it may be that

the factual question of whether the defendant was in a state of repose need be

considered only when, as in Burnett, the two causes of action are the same. In

other cases, an actual state of repose apparently may be presumed:

“Only where there is complete identity of the causes of

action will the protections [of the defendant's interests}

suggested . . . necessarily exist and will the courts have an

opportunity to assess the influence of the policy of repose

inherent in a limitation period... .” /d. at 467, 468 n.14.

16a

Appendix B

accrued.'! /d. Lack of diligence weighs even more heavily against

Meyer. Not only might he have resorted to the federal court in

the first instance, but he also had eleven months after the New

York Court of Appeals denied leave to appeal in July 1973

before the three-year limitations period ran out. See UAW v.

Hoosier Cardinal Corp., supra, 383 U.S. at 708.

We hold that the federalism considerations urged by Meyer

are of insufficient substance to outweigh the statue of limitations

policy so directly brought to bear by the facts of this case.'?

Affirmed.

Oakes, Circuit Judge (dissenting):

I dissent.

1 would follow Mizell v. North Broward Hospital District,

427 F.2d 468 (Sth Cir. 1970). There the Fifth Circuit held that

pursuit of state administrative and judicial remedies by a

11. The question in Johnson was whether the timely filing of a charge

with the EEOC tolls the applicable state limitations period for an action under

42 U.S.C. §1981 (1970). The Court held that it does not, relying on Congress’

intent that administrative proceedings under Section 706 of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §2000e-5 (1970), and suit in court order

§1981 be “separate, distinct, and independent.” 454 U.S. at 460-61, 465-66. See

also Electrical Workers Local 790 v. Robbins and Myers, Inc., ___ U.S. ——

45 U.S.L.W. 4068 (U.S. Dec. 20, 1976). Johnson in no sense controls on the

issue now before us, for the question of federalism policy presented in this case

was not presented there. Nevertheless, we note the considerable weight

Johnson places on upholding statute of limitations policy. /d. at 463-67, and

467 n.14.

12. In view of our holding above, we find it unnecessary to reach

appellees’ contention that Meyer's litigation of federal questions in his Article

78 proceeding bars the instant §1983 action on the ground of res judicata.

17a

Appendix B

dismissed local government employee tolled the statute of

limitations applicable to the employee's later-filed action under

42 U.S.C. §1983. Judge Tuttle for the court reasoned that

“under our system of federalism aggrieved persons should be

encouraged to utilize state procedure before appealing to the

federal courts ... ,” id. at 474; failure to toll the §1983 statute

of limitations while state remedies are being pursued would

cause unnecessary filings of §1983 actions and would defeat an

“underlying purpose of the Civil Rights Acts,” id.' Two crucial

premises upon which the Fifth Circuit based its holding — that

state remedies are separate and independent from §1983

remedies, and that federal courts, while in general applying state

statutes of limitations to §1983 actions, have the authority and

the obligation to create their own tolling rules when necessary,

id. at 473-74 — have since been recognized as valid by our

circuit. Lombard v. Board of Education, 502 F.2d 631, 635-37

(2d Cir. 1974) (federal claim under §1983 separate from state

claim), cert. denied, 420 U.S. 976 (1975); Kaiser v. Cahn, 510

F.2d 282, 286-87 (2d Cir. 1974). In the latter case, in reference to

a §1983 claim, we » d:

1. In the Fifth Circuit Mizell v. North Broward Hosp. Dist., 427 F.2d 468

(Sth Cir. 1970), remains good law, see Guerra v. Manchester Terminal Corp.,

498 F.2d 641, 649 n.13 (Sth Cir. 1974), despite some earlier concern about its

demise, see Blair v. Page Aircraft Maintenance, Inc., 467 F.2d 815, 821 (Sth

Cir. 1972) (Tuttle, J.. dissenting) (suggesting possibility of “sub silentio™

overruling of Mize// by majority). The case of Ammlung v. City of Chester, 494

F.2d 811, 816 (3d Cir. 1974), did criticize the “fashioning [of] federal tolling

principles” in Mizell, but that aspect of Mize// has already been approved by

the Second Circuit (without reference to Mizell in Kaiser v. Cahn, 510 F.2d

282, 286-87 (2d Cir. 1974). Ammilung, moreover, indicated that Mizell could be

considered sound on its “peculiar facts,” facts also extant in this case: Mizell

involved “the utilization of state administrative procedures and the state courts

to reinstate a privilege revoked by the state,” and “the plaintiffs success in

having his [job] reinstated at the state level would have obviated the need for a

federal civil rights action.” 494 F.2d at 816.

18a

Appendix B

We may in applying federal law to a claim based on

a federal statute prevent a result that would substantially

impair a valid federal interest. Thus a borrowed state

statue of limitations may be tolled in conformity with

federal doctrine where the right is the creature of federal

statute, Holmberg v. Ambrecht, 327 U.S. 392, 66 S.Ct.

582, 90 L.Ed. 743 (1946)...

We think that civil rights claimants, as well as seamen

are entitled to, in the words of Mr. Justice Black “full

benefit of federal law”. Garrett v. Moore-McCormack

Co., 317 U.S. 239, 243, 63 S.Ct. 246, 87 L.Ed. 239

(1942).

In sum, we do not feel that we are necessarily bound

by the state’s determination of when its statute of

limitations is tolled where the question arises in a civil

rights claim in the federal court.

510 F.2d at 287.

The majority distinguishes Mizell on the basis that

appellant “did not restrict his [state court] petition to claims

grounded in state law.” Majority op., ante at — . But appellant

did not make the same federal claim in state court as he makes

here; as the majority points out, “the core” of his federal claim in

his state petition was “fajlleged violations of his Sixth

Amendment rights to counsel and confrontation of

witnesses . . . ,” id. at — , while he here claims violation of “his

Fifth Amendment privilege against self-incrimination” and

deprival of “the pursuit of his calling without due process of

law,” id. at — . The majority says that “[tJhe only thing Meyer

has held in reserve has been the federal court itself... ,” id. at

re Ts

19a

Appendix B

— , ignoring the fact that he has also “held in reserve”? his Fifth

Amendment and due process claims. The considerations set

forth in Mizell, Lombard and Kaiser should apply to all federal

claims not asserted in state court, regardless whether other

federal claims were asserted in the state action.

The district court in this case refused to consider Mizell,

because it viewed as controlling the Supreme Court’s decision in

Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975),

a view correctly rejected by the majority, majority op., ante at p.

1370 n.11. Johnson held that the filing of a Title VII charge with

the EEOC did not toll the statute of limitations applicable to a

§1981 action. The Johnson case is readily distinguishable from

this one in two respects. First, concerns of federalism were not

implicated there, since both of plaintiffs avenues of relief were

federal. Second, the procedures under Title VII and §1981 were

intended by Congress to complement each other, 421 U.S. at

459, and essentially the same claims can be made in both types

of actions. Here, by contrast, plaintiffs two avenues of relief

derive from different sources of authority and involve entirely

different claims, even though the same result (reinstatement) is

being sought in both forums. Since constitutional issues raised in

the state proceeding cannot be relitigated in the §1983 action,

Lombard v. Board of Educatien, supra, 502 F.2d at 636-37, the

two forums are, with regard to federal constitutional relief,

mutually exclusive, whereas in the Johnson situation the

Supreme Court emphasized the nonexclusivity of the Title VII

and Civil Rights Act procedures, 421 U.S. at 459.

2. The majority's characterization of certain federal claims as being “held

in reserve” by litigants has a disapproving tone that | do not accept. Litigants

have a clear, unquestioned right to proceed with separate claims in state and

federal forums. Indeed, one inevitable consequence of the majority's decision

today ts that state court litigants will hold many more issues “in reserve” for

federal court consideration.

20a

Appendix B

1 would hold that the statute of limitations applicable to

Detective Meyer's present claims under §1983 was tolled while

he was seeking relief in the state courts.

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS DENYING EN BANC

RECONSIDERATION

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of Appeals, in

and for the Second Circuit, held at the United States Court

House, in the City of New York, on the ninth day of March, one

thousand nine hundred and seventy-seven.

WALTER MEYER,

Plaintiff-Appellant,

Vv.

LOUIS J. FRANK, COMMISSIONER OF POLICE,

NASSAU COUNTY POLICE DEPARTMENT, ETC.,

Defendants-Appellees.

Filed March 9, 1977

Daniel Fusaro, Clerk

Docket No. 76-7172

2la

Appendix C

A petition for rehearing containing a suggestion that the

action be reheard en banc having been filed herein by counsel

for the plaintiff-appellant, WALTER MEYER, and no active

judge or judge who was a member of the panel having requested

that a vote be taken on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DENIED.

s/ Irving R. Kaufman

IRVING R. KAUFMAN

Chief Judge