Record and brief — Pauk v. Board of Trustees of the City University of New York
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81°1091
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ANDER L. STEVAS.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1981
>
EDGAR PAUK,
Petitioner,
—against—
THE BOARD OF TRUSTEES OF
THE CiTy UNIVERSITY OF NEW YORK, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
JONATHAN A. WEISS
132 West 43rd Street, 3rd Fl.
New York, New York 10036
(212) 391-0120
Attorney for Petitioner
QUESTIONS PRESENTED
Where petitioner, a college professor,
complained that he was denied tenure solely
due to his exercise of free speech and union
activities, but the Second Circuit Court of
Appeals dismissed his § 1983 action as
untimely because it was initiated more than
three years from the time it allegedly
accrued:
(1) Was it error for the Second Circuit
Court of Appeals to apply to petitioner's
§ 1983 action the New York statute of limi-
tations for a liability created by statute,
even though this Court has held that § 1983
creates no liability, and even though state
courts in New York and at least one federal
court outside New York, have held that such
statutes of limitations are not applicable
for § 1983 Civil Rights actions?
(2) Was it error for the Second Circuit
to hold that petitioner's cause of action
accrued before the decision to terminate his
employment, and thus tenure, was final under
state law?*
* A complete listing of all respondents in
the proceeding is as follows: The Board
of Trustees of the City University of New
York; The City of New York; Harold M. Jacobs,
Patricia J. Carry Stewart, Loretta A. Conway,
Walter H. Crowley, Armand D'Angelo, Edith B.
Everett, Gurston D. Goldin, Albert V.
Maniscalco, Joan B. Maynard, Emanuel R. Piore,
Joaquin Rivera, David Z. Robinson, Ronald T.
Gault and Jack J. Oliviero, members of the
Board of Trustees of the City University of
New York; Saul B. Cohen, Joseph S. Murphy,
Nathaniel H. Siegel, Lola R. Locker, Albert
M. Levenson, David H. Speidel, Seymour Goodman,
Norman L. Goldman, Joel Mandelbaum, Henry W.
Morton, William Hamovitch, Michael Studdert-
Kennedy, Konrad Gries, John H. Reilly, Manuel
Lloris, Seymour Resnick, Martin Nozick, Albert
A. Sicroff, Rosette C. Lamont, Sergio Pacifici
and Beatrice P. Patt, members or former members
of the faculty at Queens College.
ii
TABLE OF CONTENTS
Page
Questions Presented .........e6- i
GUEREGRS BONSW ccccesccvecessece 2
DUBASEICCAGR ccccccccccccccccece 2
Constitutional and Statutory
ES ae 3
Statement of the Case.........ee. 3
REASONS FOR GRANTING THE WRIT .. 6
1. The mistaken application
of the state statute of
limitations for a liability
created by statute to a
§1983 cause of action dis-
regards this Court's
decision in Chapman that
§1983 “does not provide
any rights at all.".... 10
2. There is a conflict
between the Circuit
Courts as to whether,
in light of Chapman,
§1983 is a statute
creating a liability.. 14
3. The Circuit Court's
holding conflicts with
New York precedent... 16
A. Applicability of
CPLR 214(2)...... 16
iii
B. Accrual of the
cause of action... 17
4. Decisions of New York state
courts and New York federal
courts conflict on the
period of limitations
applicable to a §1983
GUGRGs c cc cccoccceeeoeeoose 20
Gc eccoceceooeeéeeeeweecesees 26
APPENDIX A
Opinion of the
Court of Appeals
for the Second Circuit ........ A- l
APPENDIX B
Opinion of the
District Court for the
Eastern District of
-. . SP PPrrrrvTrrrrvTrTrTrrriririts .« -.
APPENDIX C
Order of the Court of
Appeals for the Second
Circuit Denying Petition
For Rehearing In Banc ......... A-45
APPENDIX D
Relevant Constitutional
and Statutory Provisions ...... A-47
iv
TABLE OF AUTHORITIES
Cases:
Beard v. Robinson, 563 F.2d 331
(7th Cir. 1981), cert. den.,
438 U.S. 907 (1978)
Board of Regents v. Tomanio,
446 U.S. 4 (1980)
Burns v. Sullivan, 619 F.2d 99
(ist Cir. 1980), cert. den.,
U.S. , 101 §.ct. 256,
66 L.EG.2d 121 (1980)
Chapman v. Houston Welfare Rights Org.,
U.S.
Chardon v. Fernandez, 50 U.S.L.W. 3341
(November 3, 1981)
Clark v. Water Commissioners,
N.Y.
Davis v. Passman, 442 U.S. 228
(1979)
Delaware State conse v. Ricks,
U.S. ’ Ct. ’
66 L.Ed.2d 431 (1980)
International U., U.A., A. & A.I.W.
v. Hoosier C. Corp., U.S.
(1966)
Johnson v. Railway Express Agency,
421 U.S. 454 T1375)
McMillian v. City of Rockmart,
° (Sth Cir., Unit B,
1981)
Marshall v. Kle , 637 F.2d 1217
TSth Cir. 1961)
Meeker v. Lehigh Val. R. Co.,
236 U.S. 412 TESTS}
Pauk v. Board of Higher Education,
62 App.Div.2d 660 tise Dept. 1978),
aff'd., 48 N.Y.2d 930 (1979)
Pitt v. City of New York, (Sup.Ct.,
N.Y.Co., Greenfield, J.), New York
Law Journal, November 18, 1981,
p. 4, col. 4,
Sears, Roebuck & Co. v. Enco Assoc., Inc.
N.Y.
Sicolo v. Prudential Sav. Bank
Of Brooklyn, 5 N.¥.2d 254 (1959)
Skehan v. Board of Trustees,
590 F.2g 470 (3rd Cir. 19768),
cert. den., 444 U.S. 832 (1979)
Staffen v. City of Rochester,
80 App.Div.2d tS (ath De Dept. 1981)
State v. Cortelle Corp.,
N. i
Western Electric Co. v. Brenner,
N. >.
vi
Federal Constitution
U. S. Const. Amend. XIV, § l
Federal statutes
42 U.S.C. § 1983
New York statutes
Civil Practice Law and Rules
§ 213(1)
§ 213(2)
§ 214(2)
Articles
Feld, Daniel E., “What Statute of
Limitations Is Applicable to Civil
Rights Action Brought Under 42 U.S.C.
§ 1983," 45 A.L.R. Fed. 548-586 and
1981 Later Case Service.
"A Limitation of Actions for
Deprivation of Federal Rights,"
68 Columbia Law Review 763 (1968).
"Statutes of Limitations in Federal
Civil Rights Litigation," 1976 Arizona
State Law Journal 97 (1976).
vii
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1981
No.
EDGAR PAUK,
Petitioner,
- against -
THE BOARD OF TRUSTEES OF THE CITY
UNIVERSITY OF NEW YORK, et al.,
Respondents.
PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
Petitioner Edgar Pauk prays that a writ
of certiorari issue to review the order of
the United States Court of Appeals for the
Second Circuit entered in this case on July
22, 1981.
Opinions Below
The opinion of the Court of Appeals
for the Second Circuit is reported at 654
F.2d 856 and is set forth at Appendix A
herein. The opinion of the District Court
for the Eastern District of New York, dated
October 14, 1980, is not reported and is set
forth at Appendix B herein.
Jurisdiction
The order of the Court of Appeals for
the Second Circuit was dated and entered on
July 22, 1981. Petitioner filed a timely
motion for rehearing in banc, which was
denied on September 11, 1981 in an order set
forth at Appendix C herein. This petition
for a writ of certiorari was filed within
ninety days of the denial of the motion for
rehearing. The jurisdiction of this Court.
is invoked pursuant to 28 U.S.C. § 1254(1).
Constitutional and Statutory Provisions
The federal Constitutional provision
involved is the Fourteenth Amendment to the
United States Constitution. The federal
statutory provision involved is 42 U.S.C.
§ 1983. The state statutory provisions
involved are Sections 214(2), 213(1) and 213(2)
of the New York Civil Practice Law and Rules.
The text of those provisions is set forth at
Appendix D herein.
Statement of the Case
From September 1, 1967 to August 31,
1976 petitioner was employed by Respondent
Board of Trustees to teach in the Department
of Romance Languages at Queens College.
In September of 1975 petitioner's department
voted to recommend that petitioner be re-
appointed for a sixth year in the position
of assistant professor, and thus acquire
statutory tenure. In October of 1975,
however, a college committee made a negative
recommendation to the College President,
who invited petitioner to appeal. Peti-
tioner's appeal alleged that the proposed
denial of reappointment was caused solely
by his exercise of the right of free speech
and union activities. In November 1975,
the College President rejected petitioner's
appeal and he was notified by the Provost
that his appointment at Queens College would
end on August 31, 1976. Because it was the
College President's custom not to forward
negative recommendations to the Board, the
Board had no occasion to, and did not act on
the denial of petitioner's appointment with
tenure.
On August 31, 1979* petitioner insti-
tuted this action pursuant to 42 U.S.C.
§ 1983, alleging the deprivation under color
of state laws of rights secured to him by
the Constitution of the United States. On
bd Although petitioner did not begin this
action until three years after the end
of his employment, in January 1976 (while
still employed by the Board) he began a
special proceeding in the nature of mandamus
in state court. In that proceeding, he
claimed tenure by estoppel because of the
length of his service with the Board. In
September 1977 Special Term granted his
petition and ordered him reinstated with
tenure. However, the Appellate Division
reversed that decision and the reversal was
affirmed by the Court of Appeals. Pauk v.
Board of Higher Education, 62 App.Div.2d 660
(Ist Dept. 1378) aff'd., 48 N.Y.2d 930 (1979).
After petitioner began the action at bar, this
Court reversed the Second Circuit's rule,
which tolled the statute of limitations ap-
plicable to § 1983 actions pending actions
or proceeding in state court vindicating no
federal causes of action. See, Board of
Regents v. Tomanio, 446 U.S. 478 (1980).
October 14, 1980, however, the United States
District Court for the Eastern District of
New York dismissed petitioner's action as
untimely because initiated more than three
years from the time his action accrued.
The Court held that petitioner's action
accrued in November 1975, when he was
notified his employment would terminate on
August 31, 1976. On July 22, 1981 the
United States Circuit Court for the Second
Circuit affirmed the District Court's decision.
REASONS FOR GRANTING THE WRIT
This case presents the Court with an op-
portunity to settle the confusion, uncertainty
and lack of uniformity which now exists with
respect to the appropriate statute of limita-
tions in civil rights cases under 42 U.S.C.
1983. This confusion results in burdening
the lower federal (and state) courts who must,
in the absence of guidelines from this Court,
attempt to fashion appropriate limitation
periods, using widely varying methods of
analysis and unfortunately coming to markedly
different conclusions. Thus not only does
the limitation period vary from circuit to
circuit and from state to state (ranging from
six months in Massachusetts (Burns v. Sullivan,
619 F.2d 99 (lst Cir. 1980), cert. den.,
U.S. , 101 S. Ct. 256, 66 L.Ed.2d
121 (1980)) to six years in Pennsylvania
(Skehan v. Board of Trustees, 590 F.2d 470
(3rd Cir. 1978), cert. den., 444 U.S. 832
(1979)), but often within the same state,
depending on the facts of each action. Thus,
in § 1983 actions within the same state,
federal courts have applied state statute of
limitations governing tort actions for
personal injury, intentional torts, contract
actions, state civil rights provisions,
actions against public officials and actions
not otherwise provided for. See, Daniel E.
Feld, "What Statute of Limitations Is Appli-
cable to Civil Rights Action Brought Under
42 U.S.C. § 1983," 45 A.L.R. Fed. 548-586
and 1981 Later Case Service; "Statutes of
Limitations in Federal Civil Rights Litiga-
tion," 1976 Arizona State Law Journal 97
(1976); “A Limitation of Actions for
Deprivation of Federal Rights," 68 Columbia
Law Review 763 (1968).
Furthermore, in at least one state, New
York, state and federal courts differ in their
method of analysis of a 1983 action, and thus
resort to two different sets of periods of
limitations, as discussed infra.
Adding to the confusion, in this and
other cases, is the problem that while many
courts apply the state statute of limitations
for actions upon liability created by statute,
this Court has recently held that 42 U.S.C.
1983 is not a statute creating liability.
Chapman v. Houston Welfare Rights Org., 441
U.S. 600 (1979).
This confusion and perplexity also re-
sults in uncertainty and unfairness to
litigants, like petitioner, required to
guess what statute of limitations will apply
to their cases. This Court in its supervisory
capacity should definitively resolve this
issue and establish clear guidelines
with respect to the appropriate statute of
limitations for Civil Rights Actions.
l. The mistaken application of
the state statute of limitations
for a liability created by
statute to a §1983 cause of
action disregards this Court's
decision in Chapman that
§1983 “does not provide any
rights at all."
Congress has not established a statute
of limitations applicable to actions brought
under §1983. This Court has held, therefore,
that a federal court must “borrow” the "state
law of limitations governing an analogous
cause of action." Board of Regents v. Tomanio,
446 U.S. 478 (1980), at 483; Johnson v.
Railway Express Agency, 421 U.S. 454 (1975).
In the case at bar, the Second Circuit
undertook "to examine the limitations
periods that New York has prescribed for
various state causes of action and then
select for §1983 claims, as a matter of
federal law, the limitations period for
an ‘analogous’ state cause of action."
(A-19). It then held that "a state law
10
Claim founded upon a statute is the appropriate
analogy for a §1983 claim." Id. Thus, the
Circuit Court applied to petitioner's action
section 214(2) of the New York Civil Practice
Law and Rules ("CPLR"), (McKinney's, 1972),
which provides a three-year limit for
an action to recover upon
a liability, penalty or
forfeiture created or
imposed by statute.
This Court has held, however, that §1983
"does not provide any rights at all", but
served only to ensure that
an individual had a cause
of action for violations
of the Constitution, which
in the Fourteenth Amendment
embodied and extended to
all individuals as against
state action the substantive
protections afforded by §1
of the 1866 Act.
Chapman v. Houston Welfare Rights Org.
("Chapman"), 441 U.S. 600 (1979), at 617-618.
As used in Chapman, “cause of action" means
only that a §1983 plaintiff
is a member of the class
of litigants that may, as
11
a matter of law, appropriately
invoke the power of the Court.
Davis v. Passman, 442 U.S. 228 (1979), at
239, note 18. This Court has also held
that, "one cannot go into court and claim
a ‘violation of §1983' - for §1983 by itself
does not protect anyone against anything.”
Chapman, supra, 441 U.S. at 617.
It is axiomatic, therefore, that a
statute like §1983 that "does not provide
any rights at all", can create no corresponding
liability. Thus CPLR 214(2) is not the ap-
propriate state statute of limitations to be
applied to §1983 actions based on the United
States Constitution.
Because the Circuit Court could not
distinguish the holding of Chapman, it chose
to ignore that decision, and dwell instead
upon all the reasons why it found it preferable
to continue to apply CPLR 214(2) to the action
12
at bar. In his concurring opinion, Judge
Sofaer criticized the majority for not facing
up to Chapman, stating:
A precise reading of
Chapman spares us the need
to engage in policy analysis
that might suggest we are
selecting a limitations
period that we find con-
venient, rather than one
squarely justified by
state-law analogies.
.
(A-22 )
By disregarding the clear principles
enunciated by this Court in Chapman, the
Circuit Court compounds the confusion now
present in the lower federal courts sur-
rounding the applicable state statute of
limitations for § 1983 actions.
* The concurring opinion, however, provides
no "precise reading of Cha * I
merely attempts to differentiate "ereating*
a liability from "imposing" a liability, in a
Procrustean effort to fit the language of
CPLR 214(2) within the holding of Cha °
For decisions differentiating the ae of
a liability from the imposing of a penalty or
forfeiture, see Sicolo v. Prudential Sav. Bank
of Brooklyn, 5 N.Y.2d 254 (1959) and Meeker v.
ehigh Val. R. Co., 236 U.S. 412 (1915).
13
2. There is a conflict between
the Circuit Courts as to
whether, in light of
Chapman, §1983 is a statute
creating a liability.
The decision of the Circuit Court in its
analysis of the effect of Chapman conflicts
with a recent decision of the Fifth Circuit.
The Fifth Circuit has recently held that, in
light of Chapman, a §1983 action based on the
Constitution was not one "for the enforcement
of rights accruing to individuals under
statutes," and thus declined to apply the
Georgia twenty-year statute of limitations
applicable to the enforcement of rights accru-
ing under statutes. It applied, instead, the
two-year limitation period for “actions for
injuries to the person," to an action where
plaintiff had complained of “irregularities
surrounding his arrest." McMillian v. City
of Rockmart, 653 F.2d 907 (5th Cir., Unit B,
1981).
The Fifth Circuit is the only court,
14
state or federal, outside New York to consider
the continued applicability of a period of
limitations for liabilities created by, or
accruing under a statute in light of Chapman.
However, the issue is bound to be raised
whenever a similar state statute of
limitations has heretofore been held
applicable to §1983 actions under the
Constitution.* This Court should provide
guidance to avoid compounding the
confusion and uncertainty which are
bound to increase On this important
issue.
* State statutes of limitations governing
actions to recover upon liabilities created
by statute were held applicable to §1983 actions
by federal courts within the following circuits.
2nd Cir.: New York; 4th Cir.: North Carolina;
5th Cir.: Texas, Florida, Alabama; 6th Cir.:
Kentucky; 7th Cir.: Wisconsin; 8th Cir.:
Arkansas, Nebraska; 9th Cir.: California,
Montana, Nevada, Idaho, Oregon; 10th Cir.:
Colorado, Wyoming. 45 A.L.R. Fed. 548-586.
15
3. The Circuit Court's holding
conflicts with New York
precedent.
A. Applicability of CPLR 214(2)
Section 214(2) has been held inapplicable
by New York courts to a statute which, "in
regulating a substantive right or the procedure
for its enforcement does not create or impose
a liability, penalty or forfeiture." State
v. Cortelle Corp. ("Cortelle"), 38 N.Y. 2d
83 (1975), at 89. The Court stated: "The
statute may limit or broaden the remedy, even
define its exercise and by whom, but it did
not create or impose a liability, penalty or
forfeiture in the sense of CPLR 214."
Cortelle, supra, 38 N.Y. 2d at 88. A
fair reading of this Court's decision in
Chapman and of the New York Court of Appeals'
decision in Cortelle, compels the conclusion
that, under New York State law, CPLR 214(2)
is not applicable to a §1923 action. As held
by this Court in Tomanio, supra, 446 U.S.
at 484, in §1983 actions state statutes of
16
limitations are “more than a technical
obstacle to be circumvented if possible. In
most cases, they are binding rules of law"
which 42 U.S.C. §1988 “authorizes federal
courts to disregard ... only if the state
law is inconsistent with the Constitution
and laws of the United States." Tomanio,
supra, 446 U.S. at 484-485.
B. Accrual of the cause of action
This Court has recently settled the
issue of the accrual of an employment dis-
crimination cause of action in an academic
setting, where notice of termination of
employment precedes actual termination by
several months or even years. See Delaware
State College v. Ricks, ("Ricks"), U.S.
101 S. Ct. 498, 66 L.Ed.2d 431 (1980)(42
U.S.C. § 1981) and Chardon v. Fernandez
("Chardon"), 50 U.S.L.W. 3341 (November 3,
1981) (42 U.S.C. § 1983). In those deci-
sions this Court held that "limitation
17
periods normally commence when the employer's
decision is made." Ricks, supra, 66 L.Ed.2d
at 442. (Emphasis added). In Ricks the
Court essentially held that, when the Board
of Trustees voted to deny plaintiff tenure,
by that vote "the College had established
its official position." Ricks, supra, 66
L.Ed.2d at 442. Thus, the termination of
employment was only “a delayed, but inevitable,
consequence of the denial of tenure." Ricks,
supra, 66 L.E.2d at 439. Similarly, in
Chardon this Court held that plaintiffs'
cause of action accrued when a "final deci-
sion had been made" to terminate their
employment. Chardon, supra, 50 U.S.L.W. at
3342. (Emphasis added). It is clear,
therefore, that under the standards enunci-
ated by this Court, a cause of action for
employment discrimination accrues when the
employer makes a final decision.
In the case at bar, under New York law,
18
petitioner's employer was not the President
of Queens College, but the Board of Trustees
of the City University of New York. It is
undisputed that said Board never acted to
terminate plaintiff's appointment. Because
the Board's time to act did not expire until
August 31, 1976, there was no final decision
prior to that date regarding the termination
of petitioner's employment. On the authority
of Ricks and Chardon, petitioner's § 1983
cause of action, therefore, did not accrue
until a final decision was made by default
on August 31, 1976, and this action, initiated
within three years of that date, was timely.
19
4. Decisions of New York
State courts and New
York federal courts
conflict on the period
of limitations appli-
cable to a § ELE action.
Two New York courts so far have con-
sidered the continued applicability of CPLR
214(2) to a § 1983 action in the light of
Chapman, and both have come to the conclusion
that CPLR 214(2) no longer applies to such an
action. Staffen v. City of Rochester
("Staffen"), 80 App. Div. 2d 16 (4th Dept.
1981); Pitt v. City of New York, (Sup. Ct.,
N.Y¥.Co., Greenfield, J.), New York Law Journal,
November 18, 1981, p. 4, col. 4 ("Pitt"). As
a consequence of the Circuit Court's disregard
of this Court's holding in Chapman, there are
now two sets of statutes of limitations appli-
cable in New York to the same § 1983 action.
Which set is chosen depends entirely on
whether the action is brought in state court
or federal court.
20
In federal court, all § 1983 actions are
mistakenly characterized as actions "to re-
cover upon a liability created by statute,”
and governed by CPLR 214(2) (3 years). In
state court instead, "it is the gravamen or
essence of the cause of action that deter-
mines the applicable Statute of Limitations."
Western Elec. Co. v. Brenner, 41 N.Y. 2d 291
(1977), at 293. Therefore, each § 1983 claim
must be individually examined in order to
determine its “gravamen or essence" and then
the relevant period of limitations applied to
it. Thus, in Staffen, after examining the
cause of action, the court held that the
particular § 1983 action was "a tort action
against police officers to [sic] whom the
municipality has a duty to indemnify," and
applied the one-year and 90-day statute of
limitations of section 50-i of the General
Municipal Law. In Pitt, the Court held that
the essence of the cause of action was
21
assault and battery, and applied to it
CPLR 215(3) (one year), dismissing the
action as untimely.
If petitioner had brought this action
in state, rather than federal court, his
action would have been characterized as
contractual because it arose out of an
employment relationship. Thus, the state
court would have applied to it CPLR 213(2),
the six-year statute of limitations governing
actions in contract.* See, Western Electric
* As summarized by the Circuit Court, it
is plaintiff's contention that his con-
tract with the Board in addition to its
express terms, “includes all rights conferred
by New York law, which requires promotions in
the civil service to be made according to
merit, N. Y. Const., Art. V, § 6, and that
denial of tenure because of his exercise of
First Amendment rights was unrelated to merit
and therefore breached his contract." (A-13).
CPLR 213(2) is set forth at A-48.
22
v. Brenner, 41 N.Y.2d 29 (1977); Sears,
Roebuck & Co. v. Enco Assoc., Inc., 43 N.Y.2d
398 (1977). Alternatively, a state court
would have characterized petitioner's action
as arising under the Constitution, rather
than a statute, and applied to it CPLR 213(1),
the six-year residual statute of limitations.
See, Clark v. Water Commissioners, 148 N.Y.1l
(1895).* It is difficult to conceive of a
* As noted by the Circuit Court, the
"sensible but difficult conclusion"
reached by the District Court that the United
States Constitution was a statute for purposes
of CPLR 214(2),
has implicitly been rejected
by the New York courts, to
which we are supposed to
look for guidance as to the
appropriate statute of
limitations.
Circuit Court (Concurring Opinion) (A-22).
New York is not the only state to distinguish
between a liability created by statute, and
one created by the Constitution in the appli-
cation of a statute of limitations. See, e.g.,
Marshall v. Kleppe, 637 F.2d 1217, 1232-1224
(th Cir. 1981) Gali fornia) and Beard v.
Robinson, 563 F.2d 331, 334-338 (7th Cir.
Illinois), cert. den., 438 U.S. 907
(1978).
23
period of limitations more appropriate to
the vindication of rights secured by the
Fourteenth Amendment than the six-year period
of limitations applied by New York state
courts to vindicate rights secured by the
New York State Constitution.
Regardless of whether a state court
would characterize petitioner's action as one
in contract or one to vindicate constitutional
rights, neither chara¢terization should be
rejected lightly because, as this Court has
held,
there is no reason to
reject the characterization
that state law would impose
unless that characterization
is unreasonable or otherwise
inconsistent with [federal]
policy.
International U., U.A., A. & A.I.W. v. Hoosier
(Emphasis added).
It is clearly not in the best interest
of the Constitutional rights, whose vendica-
tion § 1983 was meant to authorize, to have
24
a dual set of limitation statutes applicable
in state and federal courts located in the
same state and purporting to apply the same
state law. This is particularly true where
there is no allegation that the characteri-
zation applied by state courts is "unreasonable
or otherwise inconsistent with [federal]
policy." This Court should put an end to
this dual set of limitation periods, by
Clarifying which is the correct method of
characterizing a § 1983 action for purposes
of applying to it the appropriate state
statute of limitations.
25
CONCLUSION
For the above reasons, a writ of
certiorari should issue to review the order
of the United States Court of Appeals for
the Second Circuit in this case.
Dated: December 7, 1981
Respectfully submitted,
JONATHAN A. WEISS, ESQ.
132 West 43rd Street
New York, N. Y. 10036
(212) 391-0120
Attorney for Petitioner
Edgar Pauk, Esq.
(on the brief)
26
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4
\PPENDIX A Opinion of the
Court of Appeals
for the Second Circuit.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
—-
No. 877—September Term, 1980
(Argued April 6, 1981 Decided July 22, 1981)
Docket No. 80-9018
aan
EDGAR PAUK,
Plaintiff-Appellant,
—V—
THE BOARD OF TRUSTEES OF THE
City UNIVERSITY OF NEw York, et al.,
Defendants-Appellees.
Before:
TIMBERS and NEWMAN, Circui: Judges,
and SoraeEr*, District Judge.
—_$<
Appeal from a judgment of the United States District
Court for the Eastern District of New York (Jacob Mish-
* The Honorable Abraham D. Sofaer of the United States District Court
for the Southern District of New York, sitting by designation.
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ler, Judge) dismissing appellant’s action under 42 U.S.C.
§ 1983 as time barred.
Affirmed.
>
JONATHAN A. WEIsS, New York, N.Y. (Oscar
Chase and Edgar Pauk, New York, N.Y.,
on the brief), for appellant.
EDWARD F.X. HArt, New York, N.Y. (Allen G.
Schwartz, Corp. Counsel, and Ronald E.
Sternberg, New York N.Y., on the brief),
for appellees.
a
NEWMAN, Circuit Judge:
This appeal concerns the recurring issue of determining
the appropriate statute of limitations under New York law
for actions commenced under 42 U.S.C. § 1983 (1976).
The District Court for the Eastern District of New York
(Jacob Mishler, Judge), applying New York’s three-year
limitations period for liability created or imposed by
statute, N.Y. Civ. Prac. Law and Rules (CPLR) § 214(2)
(McKinney 1972), dismissed appellant’s claim as time
barred. We affirm, concluding that § 214(2) is the New
York limitations provision that best fulfills the federal
policies underlying § 1983 actions.
Appellant Edgar Pauk became an Assistant Professor
in the Department of Romance Languages of Queens
College of the City University of New York in the Fall of
1970 after serving as a Lecturer for the three preceding
years. Under New York law, tenure is automatically
conferred within the City University when an individual
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has served full-time as an Assistant Professor for five
continuous years and is reappointed for a sixth consecu-
tive year. N.Y. Educ. Law § 6212(3) (McKinney Supp.
1980) (formerly N.Y. Educ. Law § 6206(3)). On Septem-
ber 24, 1975, after five years of full-time service,’ Pauk
was informed by his Department that it had voted to
recommend him for reappointment with tenure and was
submitting its recommendation to the College Personnel
and Budget Committee. However, on October 24, 1975,
Pauk was notified by the President of the College that the
Committee had voted against his reappointment.
In this letter, the President indicated that he would
entertain an appeal of the Committee’s determination
based on either information that had been unavailable to
the Committee, or credible allegations that the Commit-
tee had considered non-academic matters. Pauk appealed,
outlining his academic credentials, and alleging that he
had been denied reappointment because of his union
activities. On November 14, 1975, the President denied
Pauk’s appeal, and shortly thereafter, on November 24,
1975, Pauk was notified by the Provost that his appoint-
ment terminated on the final day of his existing one-year
contract, August 31, 1976. Pauk’s tenure application was
not considered by the University Board of Trustees be-
cause it was the Board’s practice to act on tenure matters
only when positive tenure recommendations were made.
! Though Pauk was appointed to the faculty for six years prior to the
action on his tenure, in 1971-1972 he was on leave of absence without
pay from all of his teaching responsibilities in order to work for the
faculty union. The New York courts held that the tenure statute, N.Y.
Educ. Law § 6206(3) (now § 6212 (3)), required five years of full-time
Service, not simply appointment, as a teacher and consequently that
Pauk had not already acquired tenure by having been reappointed to a
sixth year. Pauk v. Board of Higher Educ., 62 A.D.2d 660, 406
N.Y.S.2d 46 (ist Dep’t 1978), aff'd 48 N.Y.2d 930, 425 N.Y.S.2d 92
(1979).
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On January 7, 1976, Pauk challenged the denial of his
reappointment by filing a grievance in accordance with
the collective bargaining agreement between the Board of
Higher Education (now the Board of Trustees of the City
University of New York) and the faculty union, the
Professional Staff Congress. Under this agreement, griev-
ances were submitted to an arbitrator empowered to rule
only whether the challenged decision was procedurally
defective. If the arbitrator so ruled, the matter was
referred to a select faculty committee to reconsider the
decision and make a recommendation to the Board.
Rather than pursue this path, Pauk withdrew his griev-
ance one month after filing it. In the interim, he com-
menced an Article 78 proceeding in New York state court,
CPLR § 7801, et seg. (McKinney 1981), alleging that his
dismissal was improper since he had in fact obtained
tenure, counting either the three years in which he taught
in the capacity of a lecturer, or the one year during which
he was on leave of absence without pay from any teaching
duties. This petition was ultimately rejected by the New
York Court of Appeals in 1979. Pauk v. Board of Higher
Education, 48 N.Y.2d 930, 425 N.Y.S.2d 92 (1979), aff’g
62 A.D.2d 660, 406 N.Y.S.2d 46 (Ist Dep’t 1978). On
August 31, 1979, three years after the termination of his
employment contract, and three years and nine months
after notification of both the tenure denial and his dis-
charge date, Pauk filed this action under 42 U.S.C.
§ 1983, alleging that the College and City education
officials had deprived him of First Amendment rights by
denying him reappointment with tenure in retaliation for
his active participation in the faculty union.
The District Court granted appellees’ motion to dismiss
the complaint on the grounds that Pauk’s action was time
barred. The Court determined that Pauk’s claim had
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accrued in November 1975 when he received notification
of the tenure denial and his discharge date. The Court
then applied the three-year limitations period of CPLR
§ 214(2) for liability created or imposed by statute. We
agree with both conclusions of the District Court.
Accrual
Federal law determines when a claim accrues under
§ 1983. Singleton v. City of New York, 632 F.2d 185, 191
(2d Cir. 1980), cert. denied, __. U.S. ___. (1981). In
Singleton, following the Fourth Circuit’s approach in
Bireline v. Seagondollar, 567 F.2d 260, 263 (4th Cir.
1977), cert. denied, 444 U.S. 842 (1979), we held that the
federal claim accrues when the plaintiff “knows or has
reason to know” of the injury that is the basis of his
action. 632 F.2d at 191. Pauk knew of his injury, the
alleged improper denial of tenure, on November 24, 1975,
when he received notice of termination of his employment
from the Provost following the President’s denial of his
appeal. He contends, however, that his right of action did
not accrue until August 31, 1976, the date of his actual
discharge, because the letters he received in November did
not represent final action on his tenure application, ac-
tion that he alleges could be taken only by the Board of
Trustees of the University.’
In Delaware State College v. Ricks, _. U.S. ___
(Dec. 15, 1980), the Supreme Court held that the date of
accrual of a claim alleging that the plaintiff was denied
tenure because of his national origin in violation of 42
2 We reject Pauk’s theory that no “deprivation” occurred under
§ 1983 until his employment actually terminated. The alleged depriva-
tion violating Pauk’s constitutional rights was not the fact of his
discharge but the denial of reappointment with tenure, allegedly based
on Pauk’s protected First Amendment conduct.
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U.S.C. § 1981 (1976) and Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e (1976), was the date on which
the plaintiff had received notice of the negative tenure
decision and not the date of his actual termination.
Appellant seeks to distinguish Ricks on factual grounds,
contending that, unlike the circumstances of this case,
there was clear evidence of the decision’s finality in Ricks
because the Board of Trustees of Delaware State College
had both reviewed the faculty tenure decision and sent the
notification letter to Ricks.’
The gist of appellant’s claim is that under New York
law the Board of Trustees cannot delegate its decisional
authority with respect to academic matters such as tenure,
and that the negative tenure determination by the College
3 Appellant also contends that Ricks is inapplicable because of the
difference in the federal statutes on which the claims rest, citing this
Court’s statement in Singleton v. City of New York, 632 F.2d 185, 191
n.5 (2d Cir. 1980), cert. denied, ___ U.S. ___ (1981), that in a single
§ 1983 action relying on several claims for relief, the individual claims
need not all accrue on the same date. We disagree with appellant as to
the import of our remark in Singleton, we simply expressed the
common sense view that accrual dates for different types of claims
may vary, and did not suggest that the federal rule for determining
when a particular type of claim accrues should vary according to the
federal statute under which it is brought. We think it appropriate to
follow the Supreme Court’s approach to the time of accrual of a claim
involving a denial of tenure under 42 U.S.C. § 1981 (1976) in this
action brought under 42 U.S.C. § 1983 (1976). Cf. Bratton v. Bethle-
hem Steel Corp., 24 Empl. Prac. Dec. (CCH) 4 31,290 (9th Cir. 1980)
(same rationale for choosing statute of limitations under § 1983 applies
to § 1981); Marshall v. Electric Hose & Rubber Co., 68 F.R.D. 287,
293 (D. Del. 1975) (same).
Nor is appellant’s claim aided by Fernandez v. Chardon, No.
80-1237, ___ F.2d ____ (Ist Cir. May 8, 1981). Fernandez held that a
§ 1983 claim for wrongful discharge from government employment
accrued at the time of discharge, rather than receipt of notice of the
discharge decision. Whether or not we would agree with Fernandez in
the context of a discharge from non-academic government employ-
ment, we note that Fernandez distinguished Ricks on the ground that
Ricks, like Pauk, was alleging an unlawful denial of tenure, not a
discharge.
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Committee and the President therefore lacked binding
authority without the Board’s approval. Pauk maintains
that since these decisions were not “final,” his claim did
not accrue until his actual discharge, when he no longer
qualified under the tenure statute’s continuous full-time
service requirement. We disagree.
New York courts have held that the Board has a
“nondelegable duty” to decide faculty appointments, pro-
motion, and tenure, Rodriguez-Abad v. Kibee, 71 A.D.2d
588, 418 N.Y.S.2d 430 (Ist Dep’t 1979); Aptekar v. Board
of Higher Education, 66 A.D.2d 630, 414 N.Y.S.2d 156
(Ist Dep’t 1979); Legislative Conference of City Univer-
sity v. Board of Higher Education, 38 A.D.2d 478, 330
N.Y.S.2d 688 (Ist Dep’t), aff’d, 31 N.Y.2d 926, 340
N.Y.S.2d 924 (1972); see Professional Staff Congress/
CUNY v. City University of New York, 507 F. Supp. 637
(S.D.N.Y. 1981). But the context of these rulings is quite
distinct: at issue was the Board’s ability to reject a faculty
committee’s positive recommendation of tenure. The
courts uniformly concluded that the committee recom-
mendations did not bind the Board because the Board’s
authority to grant tenure was not delegable. In Rodri-
guez-Abad, the Appellate Division further held that when
a select committee established in accordance with the
collective bargaining agreement’s arbitration procedures
voted to recommend an individual for tenure, the Presi-
dent could not veto that determination on his own but
had to pass the recommendation on to the Board for its
review. We do not find in these rulings a requirement that
the Board independently review all negative tenure deci-
sions. The Board’s only nondelegable duty concerning
tenure under New York law is to review recommendations
for tenure supported throughout the administrative
process or committee recommendations following a prop-
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erly filed grievance even if disapproved during the ad-
ministrative process.
There was no occasion for Board review of the denial
of Pauk’s tenure because the administrative process did
not result in a favorable recommendation and Pauk
withdrew from the grievance procedure which the
New York courts have found to require ultimate Board
review. Since appellant chose not to pursue the grievance
procedure, the letters of notification he received from the
President and Provost constituted final university action
rejecting his tenure application. Pauk’s discharge follow-
ing receipt of those letters was simply the “inevitable
consequence” of the adverse tenure decision previously
made by the College just like the plaintiff’s discharge
following the trustees’ notification letter in Ricks. ___
U.S. at ___. We see no basis for disiinguishing appel-
lant’s case from Ricks. Since the Board did not delegate
any duty in this case, we affirm the District Judge’s ruling
that appellant’s federal claim accrued as of November 24,
1975, the date he received final notice of his discharge.
Statute of Limitations
Because Congress has not provided a federal statute of
limitations for actions brought under § 1983, we must
apply the most appropriate state statute of limitations.
Board of Regents v. Tomanio, 446 U.S. 478 (1980);
Johnson v. Railway Express Agency, Inc., 421 U.S. 454
(1975). We have previously held that the appropriate
statute of limitations for § 1983 actions brought in New
York is CPLR § 214(2), which specifies a three-year
limitations period for actions to recover upon a liability
created or imposed by statute. E.g., Singleton v. City of
New York, supra, 632 F.2d at 190; Taylor v. Mayone, 626
F.2d 247, 253 (2d Cir. 1980); Quinn v. Syracuse Model
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Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980);
Meyer v. Frank, 550 F.2d 726, 728 (2d Cir.), cert. denied,
434 U.S. 830 (1977). Appellant asks us to abandon these
holdings in light of the Supreme Court’s decision in
Chapman v. Houston Welfare Rights Organization, 441
U.S. 600, 618 (1979), which held that § 1983 does not
create any substantive rights and is only a remedial
statute. Since § 214(2) does not apply to actions founded
upon statutes that provide only additional remedies and
do not create or impose new obligations, State v. Cortelle
Corp., 38 N.Y.2d 83, 85-86, 378 N.Y.S.2d 654, 655-56
(1975), the continued application of § 214(2) to § 1983
actions after Chapman must be reexamined, as we have
previously recognized. See Singleton v. City of New York,
supra, 632 F.2d at 190; Taylor v. Mayone, supra, 626 F.2d
at 251 n.4; Quinn v. Syracuse Model Neighborhood
Corp., supra, 613 F.2d at 449 n.6.
The issue is squarely presented in this case because,
unlike the claims of the plaintiffs in Taylor and Quinn,
Pauk’s claim is untimely if § 214(2) applies. And, unlike
the plaintiff in Singleton, Pauk specifically urges rejec-
tion of § 214(2) in favor of the longer six-year limitations
period provided by either CPLR § 213(2) (McKinney
1972), applicable to contract actions, or § 213(1), New
York’s residual statute of limitations. Appellees agree
with Pauk that we should abandon application of
§ 214(2) in light of Chapman, but urge a much shorter
limitations period, either the one-year-and-ninety-day
limitations period for actions against a city or its employ-
ees, N.Y. Gen. Mun. Law §§ 50-i, 50-k (6) (McKinney
1977 & Supp. 1980), or the four-month limitations period
for Article 78 actions, CPLR § 217 (McKinney 1972). We
agree with Judge Mishler that, even after Chapman,
§ 214(2) is the most appropriate New York statute of
limitations for § 1983 actions.
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In reexamining the continued application of § 214(2) to
§ 1983 actions, we confront two realities: the body of our
prior case law that has rejected limitations periods shorter
than the three years specified by § 214(2) and the inexact
fit of any of New York’s statutues of limitations to § 1983
actions. Application of the one-year-and-ninety-day pe-
riod of § 50-i of the General Municipal Law was specifi-
cally rejected in Taylor v. Mayone, supra, and Quinn v.
Syracuse Model Neighborhood Corp., supra. Admittedly,
these decisions rejected § 50-i in favor of possibilities that
included § 214(2), whose applicability is now in issue, but
they retain significance nonetheless. Both Taylor and
Quinn acknowledged the possible impact of Chapman
and Cortelle upon § 214(2) and rejected § 50-i in favor of
either § 214(2) or § 213(1), the six-year residual statute of
limitations. Selection between these statutes was not nec-
essary since the claims were timely under even the three-
year statute. Nevertheless, the force of the rejection of a
shorter limitations period remains, a result that seems to
have been tacitly influenced by concern that a relatively
short limitations period would not be consistent with the
broad remedial purposes of § 1983. See Shouse v. Pierce
County, 559 F.2d 1142, 1146 (9th Cir. 1977) (per curiam).
Taylor and Quinn are additionally pertinent in their
disapproval of selecting different limitations periods for
different classes of defendants. The interest in attaining
some uniformity, at least within one state, concerning the
limitations period for § 1983 actions has been widely
noted. See Walden, III, Inc. v. Rhode Island, 576 F.2d
945, 947 (Ist Cir. 1978); Beard v. Robinson, 563 F.2d 331,
337 (7th Cir. 1977), cert. denied, 438 U.S. 907 (1978),
Smith v. Cremins, 308 F.2d 187, 190 (9th Cir. 1962);
Note, Statutes of Limitations in Federal Civil Rights
Litigation, 1976 Ariz. St. L.J. 97 (1976).
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Even if we were to consider the applicability of § 50-i
as an original question, we would be reluctant to select it
for § 1983 actions. Section 50-i applies to suits “for
personal injury or damage to real or personal property”
caused by the negligence or wrongful acts of a city or its
employees. The quoted terms fit precisely actions seeking
redress for injuries of the sort that result from common
law torts. A § 1983 suit, remedying what is sometimes
called a constitutional tort, affords redress for “a depri-
vation . . . significantly different from and more serious
than . . . a state tort.” Monroe v. Pape, 365 U.S. 167,
196 (Harlan, J., concurring). Moreover, § 50-i represents
a New York policy to provide more restrictive remedies
against municipal employees for their torts than are
available against private citizens, for whom the limita-
tions period for unintentional torts is three years. CPLR
§ 214(5) (McKinney 1972). It would be anomalous for a
federal court to apply a state policy restricting remedies
against public officials to a federal statute that is designed
to augment remedies against those officials, especially a
federal statute that affords remedies for the protection of
constitutional rights. Finally, the brevity of the period
prescribed by § 50-i is of doubtful compatability with the
purposes of § 1983. A federal court, searching for an
analogous state limitations period for a § 1983 suit,
should not select any period shorter than the two years
Congress has specified as the time within which notice
must be given of claims against the United States for
unlawful actions by federal law enforcement officers. 28
U.S.C. §§ 1346(b), 2680(h) (1976). That expression of
federal policy should establish a floor for the limitations
period of § 1983 suits, so many of which concern similar
conduct by state law enforcement officers. Cf. Regan v.
Sullivan, 557 F.2d 300 (2d Cir. 1977), adopting three-year
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period of CPLR § 214(2) or six-year period of CPLR
§ 213(1) to suits against federal law enforcement officers
brought pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).
The same considerations that render § 50-i inappro-
priate as the limitations period for § 1983 actions also
apply to appellees’ suggestion that we should adopt the
one-year-and-ninety-day period provided by § 50-k(6) for
actions against certain employees of New York City. In
enacting § 50-k(6) the New York legislature explicitly
purported to apply the one-year-and-ninety-day limita-
tions period to § 1983 suits, as well as all suits brought
pursuant to 42 U.S.C. §§ 1981-1988 against the desig-
nated class of New York City employees. But, as appel-
lant points out, § 50-k(6), as enacted, did not apply to
employees of a board of education, § 50-k(1)(a) and (e),
and although § 50-k(6) was purportedly amended to cover
New York City educational employees by an amendment
to Education Law § 6211, Ch. 673, § 11, Laws of 1979,
that amendment was ineffective, having occurred after
§ 6211 had been repealed by Ch. 305, Laws of 1979.
Moreover, the inappropriateness of adopting different
limitations periods for different classes of defendants in
§ 1983 suits makes it highly undesirable to select dif-
ferent limitations periods for defendants occupying simi-
lar positions in different cities within a single state.
Appellees also suggest that the appropriate limitations
period is the four months provided by CPLR § 217 for
proceedings brought pursuant to Article 78 of the CPLR.
The brevity of that period makes it singularly inappro-
priate for § 1983 actions. Moreover, even if an Article 78
proceeding is available for appellant’s constitutional chal-
lenge to the denial of his tenure, there is no reason to
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believe that New York regards this procedure as the
exclusive means for pursuing such a claim. Article 78
proceedings, though frequently brought, retain their basic
nature as the modern procedural device for obtaining
relief previously sought by specialized writs of certiorari
for review, mandamus, or prohibition. CPLR § 7801.
Such writs are not analogous to § 1983 actions.
Appellant not only opposes appellees’ suggestions but
urges a limitations period longer than the three years
provided by § 214(2). He contends that the appropriate
period is the six years provided by either § 213(2), appli-
cable to contract actions, or § 213(1), the residual statute
of limitations. The argument for § 213(2) proceeds from
appellant’s contention that his contract with the Board of
Education includes all rights conferred by New York law,
which requires promotions in the civil service to be made
according to merit, N.Y. Const., Art. V, § 6, and that
denial of tenure because of his exercise of First Amend-
ment rights was unrelated to merit and therefore breached
his contract. But appellant is not suing for breach of
contract; he is suing under § 1983 for the constitutional
tort alleged to have occurred when his tenure application
was rejected in violation of his First Amendment rights.
Under New York law, when a contract simply incorpo-
rates preexisting obligations independent of the contract,
the applicable statute of limitations is not the period for
contract actions but the period appropriate to the nature
of the cause of action. Union Bank of Switzerland v. HS
Equities, Inc., 423 F. Supp. 927 (S.D.N.Y. 1976); see
Blessington v. McCrory Stores Corp., 305 N.Y. 140,
147-48 (1953). The Supreme Court recently declined to
apply § 213(2) to a New York suit nominally brought for
breach of a collective bargaining agreement because the
essence of the claim was an attempt to set aside an
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arbitration award. United Parcel Service, Inc. v. Mitchell,
___. ~-U.S. ___._ (Apr. 20, 1981). The Court therefore
applied the ninety-day limitations period applicable to a
claim of that type, CPLR § 7511(a) (McKinney 1963).
For these reasons § 213(2) does not apply to appellant’s
suit.
Appellant’s argument for application of § 213(1), the
residual limitations period, rests on the assumption that
we will no longer apply § 214(2) and the apprehension
tthat we will not accept his argument for § 213(2). Appel-
lees, sharing appellant’s view that § 214(2) no longer
applies, urge us to reject § 213(1) as well. In Singleton v.
City of New York, supra, we observed that § 213(1),
though phrased as applying to “an action for which no
limitation period is specifically prescribed by law,” has
generally been understood to govern only actions for
equitable relief. Jd. at 190.‘ We have also declined to
apply the residual limitations period to a suit seeking an
equitable remedy when an action at law was available.
Swan v. Board of Higher Education, 319 F.2d 56, 60 (2d
Cir. 1963); cf. Romer v. Leary, 425 F.2d 186 (2d Cir.
1970); see also Williams v. Walsh, 558 F.2d 667 (2d Cir.
4 Singleton may have overemphasized the significance of the materials
relied on for this conclusion. First, the opinion noted that the Practice
Commentaries to § 213(1) state that the residual six-year period “gov-
erns actions in equity.” 632 F.2d at 190. That view is not inconsistent
with the applicability of § 213(1) to at least some actions at law, unless
it is assumed that every action at law is governed by one of the specific
statutes of limitations. But see Clark v. Water Commissioners, 148
N.Y. 1, 108 N.Y.S. 427 (1895). Second, the opinion cited legislative
history stating that § 213(1) is applicable to “ ‘such equity actions as an
action to reform an instrument, or any other action where no period is
expressly prescribed.’ ” 632 F.2d at 190 n.4, quoting Leg. Doc. Vol. 1,
No. 13, 18Ist Sess. at 67 (1958). The reference to “any other action”
may well include some actions at law, rather than mean only other
equity actions. Such is the view of at least one group of commentators.
1 J. Weinstein, H. Korn & A. Miller, New York Civil Practice 213.01
(1977) (“Aside from its use as the ‘residual’ provision, CPLR 2131) is
applied in actions in which equitable relief is sought.”).
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1977). Appellant, in addition to seeking reinstatement,
has presented claims for back pay, compensatory dam-
ages, and punitive damages. Notwithstanding the legal
nature of at least some of his claims, appellant urges the
application of § 213(1) for two reasons. First, he ques-
tions Singleton’s limitation of § 213(1) to equitable ac-
tions, pointing out that the statute has at least once been
applied to an action at law. Clark v. Water Commis-
sioners, 148 N.Y. 1, 108 N.Y.S. 427 (1895) (predecessor of
§ 213(1) applied to action for compensation for taking of
property). Second, he urges that § 213(1) applies even
when a legal claim is available as long as the equitable
claim being pursued is not in aid of the legal claim. See
Russell v. Todd, 309 U.S. 280 (1940); 1 J. Weinstein, H.
Korn & A. Miller, New York Civil Practice {213.01
(1977). The substantiality of the issues raised by both
sides concerning the applicability of § 213(1) suggests that
before resolving them we should first more closely ex-
amine the premise on which bcth sides have proceeded:
that the limitations period of § 214(2), applicable to
claims founded on a statute, is no longer appropriate for
§ 1983 suits.
Even after Chapman and Cortelle, there remains room
for argument that § 1983 is a statute within the category
described by § 214(2). The argument requires examina-
tion of both Cortelle and the function of § 1983. Cortelle
declined to apply § 214(2) to an action brought by the
Attorney General of New York, pursuant to § 1101(a)(2)
of the Business Corporation Law (McKinney 1963) and
§ 63(12) of the Executive Law (McKinney 1972), to enjoin
fraudulent practices of corporations and their officers.
The Court of Appeals noted that the statutes authorizing
the Attorney General to sue did not make the defendants’
practices unlawful and that statutes providing “only addi-
4207
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tional remedies or standing” are not statutes that create
or impose liabilities within the meaning of § 214(2). 38
N.Y.2d at 85, 378 N.Y.S.2d at 655. Section 1983 is plainly
not a statute that makes anyone’s conduct unlawful, but
neither is it a statute that provides only “additional”
remedies for well-established liabilities. In the absence of
§ 1983, those who transgress constitutional commands
would be liable for damages only on the basis of an
implied cause of action grounded directly on the Consti-
tution. While such liability has been recognized, Bivens v.
Six Unknown Named Agents of Federal Bureau of Nar-
cotics, 403 U.S. 388 (1971) (Fourth Amendment); Turpin
v. Mailet, 579 F.2d 152 (2d Cir.) (en banc) (Fourth
Amendment liability of municipality), vacated and re-
manded for reconsideration sub nom. City of West Haven
v. Turpin, 439 U.S. 974 (1978); Paton v. LePrade, 524
F.2d 862, 869-70 (3d Cir. 1975) (First Amendment), it
surely is not as “old and common” as the liability for
fraud that predated the statutes authorizing the state
Attorney General’s suit in Cortelle. 38 N.Y.2d at 86, 378
N.Y.S.2d at 657. Section 1983 can hardly be said to
supply an “additional” remedy when, for the 100 years
after its enactment in 1871 until Bivens was decided in
1971, it was the only means recognized for imposing
damage liability specifically for violations of the Consti-
tution. Moreover, when § 1983 provides a remedy, an
implied cause of action grounded on the Constitution is
not available. Turpin v. Mailet, 591 F.2d 426 (2d Cir.
1979) (en banc) (rejecting cause of action against munici-
pality grounded directly on Constitution because of avail-
ability of § 1983 after Monell v. Department of Social
Services, 436 U.S. 658 (1978)). In light of the primacy of
§ 1983 in providing the basis for securing redress for
constitutional violations, we cannot be certain that the
4208
A-16
New York Court of Appeals would decline to view it as a
statute within the category to which § 214(2) applies.
Alternatively, it is possible to apply § 214(2) directly to
§ 1983 claims, as Judge Mishler did, on the rationale that
the United States Constitution, on which appellant’s
claim is founded, should be considered a statute for
purposes of § 214(2). Other courts have adopted this
rationale in applying local versions of § 214(2) to suits
based on constitutional claims. De Malherbe v. Interra-
tional Union of Elevator Constructors, 449 F. Supp.
1335, 1350 (N.D. Cal. 1978) (U.S. Constitution); Santa
Cruz County v. McKnight, 20 Ariz. 103, 111, 77 P. 256,
259 (1918) (Arizona Constitution). Moreover, in Regan v.
Sullivan, supra, we identified § 214(2) as one of two
statutes of limitations (along with § 213 (1)) that might be
applicable to claims founded directly on the Constitution
pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, supra.
Arguably opposed to this construction is Clark v.
Water Commissioners, supra, in which the New York
Court of Appeals ruled that the predecessor of § 214(2)
was inapplicable to a claim for compensation for a public
taking of property. However, Clark appears to involve a
claim based on the state constitution.’ More pertinent is a
8 The pertinence of Clark to § 1983 claims is rendered doubtful by
comparing the nature of the statute at issue in Clark and the nature of
§ 1983. The statute under which the plaintiff sued in Clark in no sense
created or imposed a liability. It merely established the procedural steps
for obtaining compensation in the special context of condemnation
authority exercised by the village of Amsterdam. N.Y. Laws of 1881,
Ch. 101. The statute extended to the village the condemning power
normally exercised by the State. Well-established prior law, as tradi-
tional as the liability for fraud that preceded the additional statutory
remedy in Cortelle, assured the plaintiff in Clark his right to secure
just compensation for any public taking of his property. Section 1983,
as discussed in the text, supra, though not creating a right, has far
more significance in providing the fundamental basis for damage
liability than the statute under which suit was brought in Clark.
4209
A-17
recent decision of the Appellate Division explicitly ruling
that, in light of Chapman and Cortelle, § 214(2) does not
apply to a § 1983 claim brought in state court against a
municipality and its police officers. Staffen v. City of
Rochester, 80 App. Div. 2d 16, __. N. Y.S.2d ____ (4th
Dep’t 1981). Staffen applied the one-year-and-ninety-day
period of § 50-i of the General Municipal Law, a result
we had rejected in Quinn. The Appellate Division was not
asked to determine whether § 214(2) should apply to
§ 1983 claims on Judge Mishler’s rationale that the
United States Constitution can be considered a statute
within the meaning of § 214(2).
From this state of the decisional law a conclusion is not
easily drawn. What must be kept in mind is the nature of
our task as distinguished from that of the state courts.
The courts of New York provide authoritative guidance
on the proper construction of state statutes, including
statutes of limitations. But determination of an appropri-
ate state limitations period applicable to a federal cause
of action is “a matter of federal law.” UAW v. Hoosier
Cardinal Corp., 383 U.S. 696, 705 (1966). We would not
be applying federal law if we automatically deferred to
New York’s view, whether expressed by its courts or its
legislature, as to which limitations period the state
thought was appropriate for a § 1983 claim.* Our task is
6 When a state legislature enacts a statute of limitations explicitiy
applicable to a federal cause of action, a federal court must determine
whether the state statute impairs the achievement of federal objectives,
for example, by prescribing an unduly short limitations period, and
whether the state statute discriminates against federal claims. See
Republic Pictures Corp. v. Kappler, 151 F.2d 543 (8th Cir. 1945)
(federal court may not enforce state statute of limitations enacted
specifically to cover claims founded on any federal law that lacks a
period of limitations), aff'd mem., 327 U.S. 757 (1946); Caldwell v.
Alabama Dry Dock & Shipbuilding Co., \61 F.2d 83 (Sth Cir. 1947)
(state statute of limitations expressly covering claims founded on Fair
Labor Standards Act of 1938 is unconstitutional). When a state court
4210
A-18
to examine the limitations periods that New York has
prescribed for various state causes of action and then
select for § 1983 claims, as a matter of federal law, the
limitations period for an “analogous” state cause of
action. Board of Regents v. Tomanio, supra, 446 U.S. at
483-84.
Having considered the alternatives, we conclude that a
state law claim founded upon a statute is the appropriate
analogy for a § 1983 claim. New York’s highest court has
characterized § 214(2) as applicable to “actions for
wrongs not recognized in the common or decisional law.”
State v. Cortelle, supra, 38 N.Y.2d at 86, 378 N.Y.S.2d at
656. While some § 1983 claims have counterparts in
actions at common law, the constitutional tort remedied
by § 1983 is “significantly different from” state torts,
Monroe v. Pape, supra, 365 U.S. at 196 (Harlan, J.,
concurring). And many § 1983 claims, such as Pauk’s
allegation of denial of tenure for exercising First Amend-
ment rights, have no common law antecedents. A § 1983
claim founded on the Constitution, even if not within the
category of claims to which § 214(2) precisely applies as a
matter of state law, is sufficiently analogous to such
claims to make the limitations period of § 214(2) appro-
priate as a matter of federal law.
determines that a state statute of limitations is applicable to a federal
cause of action, a federal court must make an even more refined
analysis. While recognizing the state court's authoritativeness in con-
struing the state statute of limitations, the federal court must bear in
mind that when the state court determines whether a particular state
statute of limitations applies to a federal claim, the state court is
deciding a question of federal law. This question, involving character-
ization of the federal claim in order to determine which state limita-
tions period most appropriately applies, may be decided by a state
court, see Testa v. Katt, 330 U.S. 386 (1947), but the state court
decision cannot preclude a federal court’s more authoritative decision
on matters of federal law.
4211
A-19
Selecting the limitations period of § 214(2) satisfacto-
rily accommodates relevant federal and state interests.
Section 214(2) manifests New York’s view of an appropri-
ate limitations period that clearly applies to § 1983 suits
founded on other federal statutes. See Maine v. Thi-
boutot, ___. U.S. ___ (June 25, 1980). The interests in
uniformity, which we have previously emphasized, e.g.,
Quinn v. Syracuse Model Neighborhood Corp., supra,
are well served by applying § 214(2)’s limitations period
to all § 1983 suits. Moreover, the three-year limitations
period is consistent with the broad remedial purposes of
§ 1983. The six-year period of § 213 (1) is considerably
longer than the relatively short period of one year and
ninety days, which the New York legislature has recently
attempted to apply to some § 1983 suits, Gen. Mun. Law
§ 50-k(6). Finally, borrowing the three-year period of
§ 214(2) serves the useful purpose of maintaining conti-
nuity in the application of that statute’s limitations period
to § 1983 suits. It would be preferable if Congress would
end the uncertainty that still exists in several states by
legislating a uniform federal statute of limitations. Until
that happens, we hold that the three-year limitations
period of § 214(2) applies to § 1983 suits in New York.
The judgment is affirmed.
oe
SOFAER, District Judge, concurring:
I concur in Judge Newman’s thorough opinion, but
write separately to emphasize that the limitations period
of CPLR § 214(2) is not merely, as the Court holds, an
appropriate provision to borrow for actions brought
pursuant to 42 U.S.C. § 1983, but rather is squarely
applicable to such suits.
4212
A-20
The three-year period of section 214(2) applies to “an
action to recover upon a liability. . . created or imposed
by statute... .” N.Y. C.PL.R. § 214(2) (emphasis
added). The issue, therefore, is not merely whether sec-
tion 1983 creates liability, but also whether it is a statute
that imposes liability. Chapman v. Houston Welfare
Rights Organization, 441 U.S. 600 (1979), did indeed
hold that section 1983 does “not provide for any substan-
tive rights”; as the Court put it, “one cannot go into
court and claim a ‘violation of § 1983’—for § 1983 by
itself does not protect anyone against anything.” /d. at
6i7. But the issue before the Court in Chapman was
whether, for the jurisdictional purposes of 28 U.S.C.
§ 1343, section 1983 was a statute securing “equal rights”
or “civil rights”—not, as in the present context, whether
liability in a federal civil rights action is imposed by
statute. The Court, in fact, recognized that section 1983
“served to ensure that an individual had a cause of action
for violations of the Constitution, which in the Four-
teenth Amendment embodied and extended to all individ-
uals as against state action the substantive protections
afforded by § 1 of the 1866 Act.” Jd. (footnote omitted).
In other words, although the Constitution creates the
substantive right asserted in a section 1983 action (other
than one brought pursuant to Maine v. Thiboutot, 100 S.
Ct. 2502 (1980)), it is section 1983 that imposes civil
liability and provides a cause of action in federal court.
Although some authority exists for the proposition that
suits against state officials for violations of constitutional
rights may be brought directly under the Constitution,
that is hardly a proposition so well-established as to
render section 1983 mere procedural surplusage. More-
over, even if the Supreme Court were to hold that such an
action were available in some circumstances, the state-
4213
A-21
ment that section 1983 is a liability-imposing statute
would nonetheless remain true, for section 1983 would
still constitute Congress’s independent authorization of
suit and would constitute sole authorization of suit in
circumstances in which no direct action was available.
Consequently, a section 1983 action falls precisely within
the language of section 214(2): it is a suit in which liability
is imposed by statute. Clark v. Water Commissioners, 148
N.Y. 1, 108 N.Y.S. 427 (1895), and State v. Cortelle
Corp., 38 N.Y.2d 83, 378 N.Y.S.2d 654 (1975), fortify this
construction, because they are based upon the rationale
that the statutes involved there neither created nor im-
posed any liability.
The recent decision in Staffen v. Rochester, 80 A.D.2d
16, 18-19 (4th Dep’t 1981), incorrectly reads Chapman as
holding that section 1983 is not a statute that creates
liability. Staffen did not address the possibility that sec-
tion 1983 could be viewed as a statute imposing, though
not creating, liability. Moreover, the New York courts
would not adhere to the proposition that section 1983
imposes no liability, in the face of an authoritative federal
decision otherwise construing Chapman (a federal deci-
sion) and the nature of section 1983 (a federal statute).
Given that we view section 1983, even in light of
Chapman, as a statute that imposes liability, we need not
reach Judge Mishler’s sensible but difficult conclusion
that the Constitution is a “statute” for purposes of
section 214(2). That position has implicitly been rejected
by the New York courts, to which we are supposed to
look for guidance as to the appropriate statute of limita-
tions. A precise reading of Chapman spares us the need to
engage in policy analysis that might suggest we are select-
ing a limitations period that we find convenient, rather
than one squarely justified by state-law analogies.
4214
A-22
APPENDIX B
Opinion of the District Court for
the Eastern District of New York
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
EDGAR PAUK,
Plaintiff,
- against -
THE BOARD OF TRUSTEES OF THE
CITY UNIVERSITY OF NEW YORK,
et al.,
Defendants.
APPEARANCES:
JONATHAN A. WEISS, ESQ.
79 C 2250
MEMORANDUM
OF DECISION
AND ORDER
ocT 14, 1980
Attorney for Plaintiff
132 West 43rd Street
New York, N. Y. 10036
ALLEN G. SCHWARTZ
CORPORATION COUNSEL
Attorney for Defendants
100 Church Street
Room 6-C-13
New York, N. Y. 10007
MISHLER, District Judge
A-23
In this action plaintiff seeks monetary
and injunctive relief pursuant to 42 U.S.C.
§ 1983 for the deprivation under color of
state laws of rights secured to him by the
Constitution of the United States. Plain-
tiff, a former professor at Queens College,
alleges that the decision by college and
City Education officials to deny him re-
appointment with tenure was in retaliation
for his participation in union and political
activities on campus and, therefore, con-
stituted a violation of his First Amendment
right of free speech.
Presently before the court is defendants'
motion pursuant to Fed.R.Civ.P. 12(b)(1) and
(6) to dismiss the complaint on the grounds
that the action is barred by the applicable
statute of limitations and the complaint
fails to state a claim upon which relief can
be granted. In the alternative, defendants
move for an order pursuant to Fed.R.Civ.P.
A-24
56(b) granting summary judgment in favor of
defendants.
From 1967 to 1970 plaintiff served as
a lecturer at Queens College of the City of
New York. In the fall of 1970 he became an
assistant professor and remained in the
position until August 31, 1976, when his
employment was officially terminated because
of his failure to obtain reappointment with
tenure for the academic year beginning in
September 1976. Tenure is granted to an
individual who has served in certain positions
for a period of five years and has been re-
appointed for a sixth consecutive year. If
the individual fails to gain reappointment
his employment is automatically terminated.
Plaintiff was considered for reappoint-
ment with tenure in September 1975. His
candidacy was evaluated by various college
committees and subcommittees. On October 24,
1975 Joseph S. Murphy, the college president,
A-25
wrote a letter to plaintiff informing him
that having received from the appropriate
committee a negative recommendation on the
plaintiff's reappointment with tenure he
was not including plaintiff's name among
those recommended for tenure to the Board
of Higher Education (now the Board of
Trustees of the City University of New York).
The president's letter invited plaintiff to
submit to him an appeal of the decision by
October 31, 1975. In this appeal plaintiff
set forth his academic qualifications for
reappointment and charged that it was plain-
tiff's union activities which brought about
the negative recommendation. On November 24,
1975 plaintiff received a letter from
President Murphy denying the appeal. In
addition, on November 24, 1975 plaintiff
received a letter from the Provost of the
College, Nathaniel Siegel, noting the termi-
nation of plaintiff's employment at the
A-26
college as cf August 31, 1976.
Defendants assert that the decision of
the president, of which plaintiff was noti-
fied on November 24, 1975, was a final
decision and that the sole mechanism avail-
able for challenging the decision was the
grievance mechanism contained in the
collective bargaining agreement between the
Board of Higher Education and the Profes-
sional Staff Congress. On January 7, 1976
a grievance was filed on plaintiff's behalf
pursuant to Article 20 of the applicable
collective bargaining agreement challenging
the denial of his candidacy for reappointment
with tenure. On February 10, 1976, however,
the grievance was withdrawn.
On January 15, 1976 plaintiff commenced
an Article 78 proceeding in New York State
Supreme Court, claiming that the combined
length of his employment as a lecturer and a
professor at Queens College automatically
A-27
entitled him to reappointment with tenure.
Plaintiff raised no constitutional issues
in the state court action. The Article 78
petition was granted on September 28, 1977,
Pauk v. Board of Higher Education, Index No.
01316/76 (Sup. Ct. N.Y. Co., Sept. 28, 1977).
However, on June 6, 1978 the Appellate Divi-
sion reversed the prior decision, Pauk v.
Board of Higher Education, 62 App. Div. 2d
660, 406 N.Y.S.2d 46 (lst Dept. 1978), aff'd,
48 N.Y. 2d 930, 425 N.Y.S.2d 92 (1979).
On August 31, 1979, exactly three years
after the termination date of plaintiff's
employment contract and approximately three
years and nine months after plaintiff received
notice of termination, plaintiff filed the
complaint in this action seeking redress
under 42 U.S.C. § 1983 for alleged deprivation
of constitutional rights. Defendants claim
that the action is barred by the applicable
statute of limitations. The court agrees.
A-28
Discussion
Congress has not specified a statute of
[limitations] for § 1983 actions. In the
absence of a specific federal statute of
limitations, federal courts “borrow” the
most appropriate state statute of limitations.
Johnson v. Railway Express Agency, Inc., 421
U.S. 454, 95 S. Ct. 1716 (1975); Kaiser v.
Cahn, 510 F.2d 282 (2d Cir. 1974). Federal
courts sitting in New York have repeatedly
held that the New York statute of limitations
applicable to § 1983 actions is the three-
year statutue of limitations found in
N.Y.C.P.L.R. § 214(2) which applies to
actions “to recover upon a liability, penalty
or forfeiture created or imposed by statute."
Meyer v. Frank, 550 F.2d 726 (2d Cir.), cert.
denied, 434 U.S. 830, 98 S.Ct. 112 (1977);
Kaiser v. Cahn, supra; Ortiz v. LaVallee, 442
F.2d 912 (2d Cir. 1971); Swan v. Board of
Higher Education, 319 F.2d 56 (2d Cir. 1963);
A-29
Bomar v. Keyes, 162 F.2d 136 (2d Cir.), cert.
denied, 332 U.S. 825 (1947).
However, plaintiff argues that the
recent Supreme Court decision in Chapman v.
Houston Welfare Rights Organization, 441 U.S.
600, 99 S. Ct. 1905 (1979), requires that
C.P.L.R. § 214(2) now be held inapplicable
to § 1983 actions. In Chapman, the Supreme
Court found that § 1983 is not a statute
that secures “equal rights" or "civil rights"
within the meaning of the jurisdictional
statute, 28 U.S.C. § 1343, because § 1983
does not provide any substantive rights, but
provides only a remedy. Because § 1983 has
been found to grant no substantive rights, it
is argued, it does not create or impose a
liability for which C.P.L.R. § 214(a) [sic]
would provide the limitations period.
The question of the continued validity
in light of Chapman of the application of
C.P.L.R. § 214(2) to § 1983 actions has in
A-30
prescribed, N.Y.C.P.L.R. § 213(1), the
Second Circuit until recently had not been
confronted with a case requiring resolution
of the limitations question. See Leonhard
v. United States, No. 79-6218 (2d Cir.
August 28, 1980); Taylor v. Mayone, No. 79-
2078 (2d Cir. June 27, 1980); Cullen v.
Margiotta, 618 F.2d 226, 228 n.3 (2d Cir.
1980).
Most recently, however, in Singleton v.
New York City, No. 79-7628 (2d Cir. September
25, 1980) the Second Circuit was squarely
confronted with the issue of whether New
York's three-year or six-year statute of
limitations applied to § 1983 actions. In
Singleton, plaintiff filed his § 1983 action
seeking damages for false arrest and assault
more than three years after his cause of
action occurred, but less than six years
after accrual, making determination of the
applicable statute of limitations crucial to
A-31
recent months gained the attention of the
Second Circuit. In Quinn v. Syracuse Model
Neighborhood Corp., 613 F.2d 438, 449 n. 6
(2d Cir. 1980), the Second Circuit first
noted the possible inapplicability of C.P.L.R.
§ 214(2) to suits arising under § 1983, cit-
ing the New York Court of Appeals' decision
in State v. Cortelle Corp., 38 N.Y.2d 83,
85, 378 N.Y.S.2d 654, 655, 341 N.E.2d 223,
224 (1975) where Judge Breitel stated that
C.P.L.R. § 214 does not apply to "[s]tatutory
provisions which provide only additional
remedies or standing [but] do not create or
impose new obligations." While noting in
dictum in Quinn and in subsequent cases
citing Quinn the possible inapplicability of
N.Y.C.P.L.R. § 214(2) to § 1983 actions, and
suggesting, in the alternative, the possible
applicability of New York's six-year statute
of limitations which governs actions for
which no other specific limitation is
A-32
the existence of the action.
The Second Circuit found that N.Y.C.P.
L.R. § 213(1), the six-year statute of
limitations, was not applicable to Singleton's
§ 1983 action and that the three-year limi-
tation found in C.P.L.R. § 214(2) remained
fi
the applicable limitations period. The
court reasoned that § 213(1) was meant to
govern actions for equitable relief, not
actions for hn and has been so
interpreted by New York State courts. See
Hanover Fire Ins. Co. v. Morse Dry Dock &
Repair Co., 270 N.Y. 86, 200 N.E.589 (1936).
In deciding whether Singleton's § 1983 claim
"[f]it into the state scheme," Klein v. Bower,
421 F.2d 338, 344 (2d Cir. 1970), the court
found that since Singleton sought only
damages and no equitable relief § 213(1)
“must be eliminated as a statute that might
be applied." Singleton v. City of New York,
supra, No. 79-7628, slip op. at 5815. In
A-33
thus eliminating § 213(1), the “only other
relevant state statute of limitations," the
court found that § 214(2) still applied,
presumably because it remained the "more
appropriate" state statute of limitations
in spite of the Supreme Court's reinterpret-
ation of § 1983 in Chapman.
Since Singleton did not foreclose the
application of N.Y.C.P.L.R. § 213(1) to
§ 1983 actions where equitable relief is
sought, this court must make its own deter-
mination whether that section might be
applied in the case presently before us,
where both damages and equitable relief are
sought. We find that § 213(1) is not
applicable. In support of this finding
we look to the reasoning in prior cases in
the Second Circuit in which the court rejected
applicability to federal claims of particular
state statutes of limitations.
A-34
In Regan v. Sullivan, 557 F.2d 300 (2d
Cir. 1977), the Second Circuit rejected the
argument that N.Y.C.P.L.R. § 215(3) which
provides a one-year period for common law
intentional torts is applicable to a Bivens
claim brought directly under the Constitution.
The court reasoned that "a deprivation of a
constitutional right is significantly dif-
ferent from and more serious than a violation
of a state right and therefore deserved a
different remedy even though the same act
may constitute both a state tort and the
deprivation of a constitutional right."
Regan v. Sullivan, supra, 557 F.2d at 304
quoting Smith v. Cremins, 308 F.2d 187, 190
(9th Cir. 1962) quoting Monroe v. Pape, 365
U.S. 167, 196, 81 S. Ct. 473, 488 (1961)
(concurring opinion).
Similarly, in Quinn v. Syracuse Model
Neighborhood Corp., supra, the Second Circuit
A-35
rejected application to § 1983 actions of
New York's one-year 90-day statute, N.Y.
Gen.Municipal Law § 50-i, which governs
actions against municipalities, stating
"[t]o create different limitations periods
for two similarly situated classes of
defendants would create a distinction without
a difference, and would engender unnecessary
confusion for litigants and judges alike."
Quinn v. Syracuse Model Neighborhood Corp.,
supra, 613 F.2d at 449. The reasoning in
Quinn was adopted by the Second Circuit in
Taylor v. Mayone, supra, No. 79-2078 (2a Cir.
June 27, 1980), to find inapplicable to
§ 1983 actions New York's one-year limita-
tions period applicable to actions against
sheriffs and other local officers.
In light of the reasoning of the Second
Circuit in Regan and Quinn, this court finds
that application to § 1983 actions of state
A-36
statutes of limitations, the applicability
of which depends upon distinctions created
to advance state interests or to accommodate
the nature of actions arising under state
law should be rejected. In this instance,
application of a specific state statute of
limitations should not be made to depend
upon the plaintiff's choice between a legal
or equitable remedy. While such a distinc-
tion may accomplish a meaningful purpose in
the context of the various causes of action
arising under state law, if applied to § 1983
actions, such a distinction would create
confusion for both litigants and judges and
would hamper rather than advance the
important purpose of § 1983 to enforce more
perfectly federal limitations on state actions.
Thus, we find that C.P.L.R. § 213(1) must be
eliminated as a statute that might be applied
in this case. N.Y.C.P.L.R. 214(2) remains
A-37
the most appropriate statute of limitations.
Even were this court to find that
C.P.L.R. 213(1) might be applicable to
§ 1983 actions in which equitable relief is
sought, we would find that C.P.L.R. 214(2),
governing actions to recover upon a liabi-
lity created or imposed by statute would
still be the statute of limitations "most
appropriate" for application to § 1983
actions notwithstanding the Supreme Court's
statement in Chapman that § 1983 creates
only a remedy and no substantive rights.
In inquiring as we must where an action
arising under a statute such as § 1983 would
fit into the state scheme, Klein v. Bower,
supra, 421 F.2d at 334, we are instructed by
the New York courts that when a cause of
action arises under a statute which creates
only standing or a remedy and no substantive
rights, a determination of which statute of
limitations is applicable is to be made by
A-38
reference to the source of the right or
liability. See State v. Cortelle Corp.,
supra; Potter v. Walker, 276 N.Y. 15, 11
N.E. 335 (1937); Binelander v. Town of Islip,
199 N.Y.S.2d 561, 10 A.D. 2d 170 (2d Dept.
1960). The rights for which § 1983 provides
a remedy for their deprivation derive from
only two sources: the Constitution and
federal laws.
An action arising under a federal
statute clearly falls within the definition
of C.P.L.R. 214(2) as an action to recover
upon a liability created by statute. As to
whether the Constitution may be regarded as
a statute, there is no doubt that the
Constitution itself creates rights and
liabilities. Turpin v. Maillet, 579 F.2d
152 (2d Cir.), vacated and remanded, 439 U.S.
988, 99 S. Ct. 586 (1978), on remand, 591 F.
2d 426 (2d Cir. 1979); Bivens v. Six Unknown
A-39
Named Agents of Federal Bureau of Narcotics
403 U.S. 388, 91 S. Ct, 1999 (1971). For
the proposition that we may view the
Constitution as a "mere statute" for the
purpose of C.P.L.R. § 214(2), see Clark v.
Water Comrs. 148 N.Y. 1, 42 N.E. 414 (1892),
we find support in the Second Circuit's
opinion in Regan v. Sullivan, supra. In
that case, despite a warning from the
district court that an action founded upon
the Constitution is not "except in the most
expansive sense" created by statute, Regan v.
Sullivan, 417 F. Supp. 399, 403 (E.D.N.Y.
1976), the Second Circuit found that the
three-year limits of C.P.L.R. § 214(2) or
the six-year limits of C.P.L.R. § 213(1)—
applied to suits against federal officers
brought directly under the sncttiieiin™
In holding that New York's three-year
A-40
statute of limitations applies in this case,
the question of when plaintiff's cause of
action accrued becomes determinative.
Plaintiff argues that the cause of action
for wrongful discharge from employment ac-
crued not on November 24, 1975, when he was
notified of discharge, but on August 3l,
1976, the date of actual termination of his
contract term, making timely this action
which was filed on August 3l, 1979, exactly
three years later.
While the appropriate statute of
limitations for federal actions is borrowed
from state law, the federal rule fixes the
time of accrual of a right of action.
Kaiser v. Cahn, supra, 510 F.2d at 285.
Under the federal rule a cause of action
accrues when the plaintiff knows or has
reason to know of the injury which is the
basis of the action. Young v. Clinchfield
A-41
Railroad Company, 288 F.2d 499, 503 (4th
Cir. 1961). Plaintiff in this case became
aware of the injury caused to him by alleged
unfairness in the evaluation of his appli-
cation for tenure and his action accrued
when he received final notice of termination
of employment on November 24, 1975. Accord,
Brogan v. Wiggins School District, 588 F.2d
409 (10th Cir. 1978); Bir2line v. Segondollar,
567 F.2d 260 (4th Cir. 1977). Plaintiff
misplaces reliance on cases holding that a
claim of employment discrimination under
Title VII accrues upon actual discharge from
employment, Ricks v. Delaware State College,
609 F.2d 710 (3rd Cir. 1979); Bonhow v.
Dresser Industries, Inc., 569 F.2d 187 (3rd
Cir. 1977), cert. denied, 439 U.S. 821, 99
S. Ct. 87 (1978). These cases involved the
180-day time limit within which a plaintiff
must file an administrative claim with the
A-42
appropriate agency. In these cases the
court reasoned that if this time limit were
calculated not from discharge, but from
notice, in most cases the claim would have
to be filed before expiration of the term
of employment in order to survive the
statute of 'timitations. The conciliatory
policy underlying Title VII legislation is
not advanced by forcing commencement of
legal proceedings before actual discharge.
See Johnson v. Railway Express Agency, Inc.,
supra, 421 U.S. at 470-73, 95 S. Ct. at
1725-26.
Plaintiff's final argument is that the
statute of limitations in the § 1983 action
was tolled during the pendency if the
proceeding commenced by plaintiff in New York
State Court under N.Y.C.P.L.R. Article 78.
In the recent case, Board of Regents of the
University of the State of New York v. Tomanio,
A-43
U.S. , 100 S. Ct. 1790 (1980),
the Supreme Court addressed this precise
issue. The Court held applicable New York's
tolling rule which does not permit tolling
during the period in which a litigant pur-
sues a related but independent cause of
action. On the basis of the Supreme Court's
decision, we find that the statute of
limitations was not tolled in this case and,
therefore, the action is barred by the three-
year statute of limitations.
Defendants’ motion to dismiss the
complaint is granted and it is
SO ORDERED.
The Clerk of the Court is directed to
enter judgment in favor of the defendants
and against the plaintiff dismissing the
complaint.
/s/ Jacob Mishler
U. Ss. D. J.
A-44
APPENDIX C
Order of the Court of Appeals for the
Second Circuit Denying Petition For
Rehearing In Banc
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
lith day of September, one thousand nine
hundred and eighty-one.
80-9018
a— eee er er er er er Or err er er eer er er nr errr a eae area ere ae eee p 4
EDGAR PAUK,
Plaintiff-Appellant,
-y=
THE BOARD OF TRUSTEES OF THE CITY
UNIVERSITY OF NEW YORK, et al.,
Defendants~-Appellees.
— ee Her er KH eK Ke KH Kr Kr Ke Kr ere Her rer er ee ee Ke eer ee er ree ee eer ree x
(Filed September 11, 1981, A. Daniel Fusaro,
Clerk)
A petition for rehearing containing a
suggestion that the action be reheard in banc
having been filed herein by counsel for the
plaintiff-appellant, Edgar Pauk,
A-45
Upon consideration by the panel that
heard the appeal, it is
ORDERED that said petition for rehearing
be DENIED.
It is further noted that the suggestion
for rehearing in banc has been transmitted
to the judges of the court in regular active
service and to any other judge on the panel
that heard the appeal and that no such judge
has requested that a vote be taken thereon.
/s/
A. Daniel FuSaro
Clerk
by /s/
Francis X. Gindhart
Chief Deputy Clerk
A-46
APPENDIX D: Relevant Constitutional
and Statutory Provisions
AMENDMENT XIV.-CITIZENSHIP; PRIVILEGES AND
IMMUNITIES; DUE PROCESS; EQUAL PROTEC-
TION; APPORTIONMENT OF REPRESENTATION;
DISQUALIFICATION OF OFFICERS; PUBLIC
DEBT; ENFORCEMENT
Section 1. All persons born or natura-
lized in the United States, and subject to
the jurisdiction thereof, are citizens of
the United States and of the State wherein
they reside. No State shall make or
enforce any law which shall abridge the
privileges or immunities of citizens of
the United States; nor shall any State
deprive any person of life, liberty, or
property, without due process of law; nor
deny to any person within its jurisdiction
the equal protection of the laws.
§ 1983. Civil action for deprivation
of rights
Every person who, under color of any
A-47
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.
§ 213. Actions to be commenced within
six years: where not other-
wise provided for; on contract;
on sealed instrument; on bond
or note, and mortgage upon real
property; by state based on
misappropriation of public
property; based on mistake;
to establish a will; by
corporation against director,
officer or stockholder; based
on fraud
The following actions must be com-
menced within six years:
A-498
l. an action for which no limitation
is specifically prescribed by law;
2. an action upon a contractual
obligation or liability express or implied,
except as provided in article 2 of the
uniform commercial code;
§ 214. Actions to be commenced within
three years: for non-payment
of money collected on execution:
for penalty created by statute;
to recover chattel; for injury
to property; for personal injury;
for malpractice; to annul a
marriage on the ground of fraud
The following actions must be com-
menced within three years:
Re *ee
2. an action to recover upon a
liability, penalty or forfeiture created
or imposed by statute except as provided
in sections 213 and 215;
A-49
uoiyisodd¢
Office - ste Court, U.S.
FILED
aE =? tL. STEVAs,
IN THE :
SUPREME COURT O° THE UNITED STATES
OCTOBER TERM, 1981
EDGAR PAUK,
Petitioner,
-against-
THE BOARD OF TRUSTEES OF THE CITY
UNIVERSITY OF NEW YORK, et al.,
Respondents.
RESPONDENTS’ BRIEF IN OPPOSITION
TO A PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
FREDERICK A. O. SCHWARZ, Jr.
Corporation Counsel of the
City of New York,
Attorney for the Respondents,
100 Church Street
New York, New York 10007
(212) 566-4338 or 4339
LEONARD KOERNER,
EDWARD F. X. HART,
of Counsel.
No. 81-1091
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1981
EDGAR PAUK,
Petitioner,
-against-
THE BOARD OF TRUSTEES OF THE CITY
UNIVERSITY OF NEW YORK, et al.,
Respondents.
RESPONDENTS’ BRIEF IN OPPOSITION
TO A PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
QUESTIONS PRESENTED
1. Whether a lack of uniformity in the
statutes of limitations applied by federal
courts in civil rights actions is a necessary
and acceptable result of the decisions of
this Court?
2. Whether the instant case is inap-
propriate for review by this Court since
petitioner's action is barred und2r any
state limitations period arguably applic-
able to this action?
3. Whether the Court of Appeals was
correct in applying the three year statute
of limitations provided in CPLR 214(2)?
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED cccccccececeseece i
TABLE OF AUTHORITIES .cceeecsceeecees V
STATEMENT OF THE CASE ccccecceccecees l
REASONS FOR DENYING A
WRIT OF CERTIORARI ccccccccccccceccce 2
POINT I
THIS COURT HAS DIRECTED FEDERAL
COURTS TO APPLY THE MOST ANALOGOUS
STATE STATUTE OF LIMITATIONS TO
FEDERAL CIVIL RIGHTS ACTIONS PUR-
SUANT TO 42 U.S.C. §1983, STATING
THAT UNIFORMITY IS NOT A CONSIDERA-
TION IN THIS AREA coccccccececceeeoees 2
POINT II
THE INSTANT CASE IS INAPPROPRIATE
FOR REVIEW OF THE QUESTION OF WHAT
IS THE ANALOGOUS STATE STATUTE OF
LIMITATIONS APPLICABLE IN A §1983
ACTION, SINCE PETITIONER IS BARRED
PURSUANT TO ANY STATE LIMITATIONS
PERIOD APPLICABLE TO ANY REASON-
ABLE CHARACTERIZATION OF THIS AC-
TION ccoccccccececeseseeeesesececesese 6
iii
TABLE OF CONTENTS
POINT III
THE COURT OF APPEALS WAS CORRECT
IN APPLYING THE THREE YEAR STATUTE
OF LIMITATIONS PERIOD PURSUANT TO
CPLR 214( 2) ccccccccccccccccccccceces
CONCLUSION .cccccccccccccccececcecces
iv
13
18
TABLE OF AUTHORITIES
Cases:
Blessington Vv. mecrory Stores
Corp oe N.Y. ( ’
NE 2a rr TT TrTrTrTirTrirtTt
Board of Regents v. Tomanio,
6 U.S. ( Sebecccccceceeeceses
Chapman v. Houston Welfare
Ri es Org., 441 U.S. 600.
(1375)
eeeeee eee eeeeeeeeeeeeeeeaneeeee
Chardon v. Fernandez, U.S.
ae Be Cee 28 eR
Clark v. Water Commissioners,
Tae N.Y. I (1895), 42 N.E.
BLE cccccccceeceeeeeeeeseecccoeceese
Johnson v. Railway Express
Agency, 421 U.S. ( )eccceccece
Klimczak v. Connrex Corp.,
49 AD 2d 1031 (4th Dept., 1975),
374 N.Y.S. 2d BE cccccecesecceeeeese
McMillian v. City of Rockmart,
653 F. 2d 907 ( t ir. APCL) coccce
People v. Duggan, 30 AD 2d 736
(3rd Dept., ), 291 N.Y.S. 2d
BES ceeeeeeseceseeseeseceseoeeeesecees
Page
10,
3,
15
16,
15
14
ll
17
TABLE OF AUTHORITIES
Pauk v. Board of Trustees, 654
F. 2d 856 (2d Cir. Dt -eceesouese
Pitt v. City of New York,
(Sup. Ct., N.Y. Co.), New York
Law Journal, November 18, 1981,
Pp. 4, col. PPT TTTTTrrrr+rrerrs+tttTteTe
Robertson v. Wegmann, 436 U.S.
( Peccceceececeeeeeeeeeeeees
Russell v. Todd, 309 U.S. 280
( eeeeseieeeeeeeeeneeneeeeeeeeneeeeee
Schmidt v. Merchants Despatch
Trans. Co., 270 N.Y. 287 (1936),
200 N.E. Sit 1 oils emi ie
Singleton v. City of New York,
ve 185 ( ir. e*eeneeee#e:
Staffen v. City of Rochester,
80 AD 2d 16 (4th Dept., 1981),
437 N.Y.S. 2d a werrrTrTTTTTrTrTyT
State v. Cortelle Corp., 38 NY
2d 83 (1975), 34 CWE sd nen
Swan v. Board of Higher Education,
319 F. 24 56 (2d Cir. 1963) ....eees
Trippe v. Port of N.Y. Auth.,
14 NY 2a 119 (1964), 198 NE 2d
-} LSP PEP PRELELECEEELELILELELTLTree
vi
10
15
10
ll
13,
16
10
ll
15,
TABLE OF AUTHORITIES
Union Bank of Switzerland v.
HD Equities, Inc., 423 F. Supp.
( «DN.Y. 6) ccvcccccccececce
United Auto Workers v. Hoosier
Corp., 383 U.S. 096 (1966) ceceeeees
Williams v. Walsh, 558 F. 2d
667 (2d Car eo Tee énetbenounesdecoée
Statutes:
Federal
28 U.S.C. §1343 ccccccccccces
42 U.S.C. §19OBl iw cccccccccees
42 U.S.C. §19OBZ wc ccesecccees
42 U.S.C. $1986 .cccsecccceces
42 U.S.C. B2000 cccccccccoses
New York State
New York Civil Practice
Law and Rules §213(1) .cceees
vii
10
14
6
1, 2,
10, ll,
13, 14,
17
-
6
8, 9,
10, ll
TABLE OF AUTHORITIES
New York Civil Practice
Law and Rules §213(2) «eee.
New York Civil Practice
Law and Rules §214(2) ...ee--.
viii
Page
8, 9
ll, 12,
13, 14,
15, 16,
17
STATEMENT OF THE CASE
The petitioner seeks to have this Court
review by writ of certiorari an order of the
United States Court of Appeals for the Second
Circuit, entered on July 22, 1981, which af-
firmed the dismissal of his complaint. Peti-
tioner filed a timely motion for rehearing
in banc, which was denied in an order dated
September 11, 1981. Petitioner instituted
this action pursuant to 42 U.S.C. §1983,
alleging deprivation under color of state
law of rights secured to him by the Consti-
tution of the United States in that he was
denied tenure as a college professor because
of the exercise of his First Amendment right
of freedom of speech by engaging in union
activity. On October 14, 1980, the United
States District Court for the Eastern Dis-
trict of New York dismissed petitioner's
action as untimely because it was instituted
more than three years from the time of its
accrual. The United States Court of Appeals
affirmed with an opinion (Pauk v. Board of
Trustees, 654 F. 2d 856 (2d Cir. 1981).
Respondents rely on the facts presented in
the Petition for a Writ of Certiorari and in
the opinion of the Court of Appeals (Petition
for a Writ of Certioari, Appendix A).
REASONS FOR DENYING A WRIT OF CERTIORARI
POINT I
THIS COURT HAS DIRECTED FEDERAL
COURTS TO APPLY THE MOST ANALOGOUS
STATE STATUTE OF LIMITATIONS TO
FEDERAL CIVIL RIGHTS ACTIONS PUR-
SUANT TO 42 U.S.C. §1983, STATING
THAT UNIFORMITY IS NOT A CONSIDERA-
TION IN THIS AREA.
Petitioner argues that a writ of cer-
tiorari should be granted since "[t]his
case presents the Court with an opportunity
to settle the confusion, uncertainty and
2
lack of uniformity which exists with re-
spect to the appropriate statute of limi-
tations in civil rights cases under 42
U.S.C. 1983." (Petition for a Writ of
Certiorari, p. 5). We submit that this
Court, in its numerous decisions directing
federal courts to apply the most approp-
riate state statute of limitations to civil
rights actions in federal court, has defini-
tively settled the question of the necessity
for uniformity in this area in favor of non-
uniformity. See, Board of Regents v. Tomanio,
446 U.S. 478 (1980); Robertson v. Wegmann,
436 U.S. 584 (1978); Johnson v. Railway Ex-
press Agency, 421 U.S. 454 (1975). “The need
for uniformity, while paramount under some
federal statutory schemes, has not been held
to warrant the displacement of state statutes
of limitations for civil rights actions."
Board of Regents v. Tomanio, supra, 446 U.S.
3
at 482. In Robertson v. Wegmann, supra, 436
U.S. at 594, this Court held that
“whatever the value of nationwide
uniformity in areas of civil rights
enforcement where Congress has not
spoken, in the area to which §1988
is applicable Congress has provided
direction, indicating that state
law will often provide the content
of the federal remedial rule. This
statutory reliance on state law ob-
viously means that there will not
be uniformity on those issues."
In Johnson v. Railway Express Agency,
supra, 421 U.S. at 464, this Court stated
that there is nothing
"peculiar to a federal civil rights
action that would justify special
reluctance in applying state law.
Indeed, the express terms of 4?
U.S.C. §1988 suggest the contrary
is true."
Furthermore, in United Auto Workers v.
Hoosier Corp., 383 U.S. 696, 706 (1966),
this Court, while recognizing that the char-
acterization of an action for the purpose of
selecting the appropriate statute of limita-
tions provision is ultimately a question of
federal law, directed federal courts to look
to characterizations provided by state law
unless that characterization is unreason-
able or inconsistent with national policies.
The principles espoused by this Court in the
cases discussed above necessarily result in
a variety of limitations periods being ap-
plied to civil rights actions even when a
federal court applies the limitations periods
of a single state, since a state may charac-
terize a civil rights action differently de-
pending upon the facts under which it arises.
As we will demonstrate below, the Court
of Appeals properly applied the three year
statute of limitations, as set forth in the
applicable New York State law, to the facts
in the instant case.
POINT II
THE INSTANT CASE IS INAPPROPRIATE
FOR REVIEW ON THE QUESTION OF WHAT
IS THE ANALOGOUS STATE STATUTE OF
LIMITATIONS APPLICABLE IN i §1983
ACTION, SINCE PETITIONER IS BARRED
PURSUANT TO ANY STATE LIMITATIONS
PERIOD APPLICABLE TO ANY REASON-
ABLE CHARACTERIZATION OF THIS AC-
TION.
(1)
The Court of Appeals was correct in
holding that petitioner's cause of action
accrued on November 24, 1975, the date on
which he knew of his alleged injury, the
improper denial of tenure. In Delaware
State College v. Ricks, 449 U.S. 250 (1980),
a case with facts identical for accrual pur-
poses to those in the instant case, this
Court held that the date of accrual of a
claim, alleging that the plaintiff was
denied tenure because of his national ori-
gin in violation of 42 U.S.C. §1981 and
42 U.S.C. §2000e, was the date on which
6
the plaintiff had received notice of the
negative tenure decision and not the date
of his actual termination. See also,
Chardon v. Fernandez, U.S. » 102
S. Ct. 28 (1981).
Although petitioner here argued that
his denial of tenure was not final because
the Board of Trustees had not specifically
acted to deny him tenure, the Court of
Appeals correctly decided that New York law
did not require that the Board of Trustees
seviev negative recommendations of tenure,
absent petitioner's resort to procedures
required in the collective bargaining agree-
ment governing the employment relationship.
See, Pauk v. Board of Trustees, supra, 654
F. 2d at 860 (Appendix to Petition, p. A-7).
Thus, the decision to deny petitioner tenure
was final for accrual purposes when he was
informed by letter dated November 24, 1975,
7
that, upon consideration of his appeal,
tenure was denied.
(2)
Since petitioner's action was instituted
on August 31, 1979, more than three years and
nine months after its accrual date, his ac-
tion must be governed by an analogous state
statute of limitations of more than that
period in order for his action to be timely.
However, as the Court of Appeals correctly
decided, the two limitations periods which
petitioner proposes, i.e., the six year per-
iod for contract (213[2]) and the six year
period for actions for which no statute of
limitations is provided (CPLR 213[1]), are
not applicable under the facts of the in-
‘stant case.
Petitioner argues that, had he brought
his action in state court, it would have been
characterized as contractual and would have
been controlled by the six year period gov-
erning contract actions (CPLR 213[2]). How-
ever, under New York law, when a contract
simply incorporates pre-existing obligations,
independent of the contract and imposed by
the laws of the jurisdiction, the applicable
limitations period is not that applied to
contracts, but rather the period appropriate
to the nature of the underlying cause of
action. Union Bank of Switzerland v. HD
Equities, Inc., 423 F. Supp. 927 (S.D.N.Y.
1976); Blessington v. McCrory Stores Corp.,
305 N.Y. 140, 146-147 (1953), 11 NE 2d 421,
422-423. It is clear, then, that petitioner's
contention that the six year period pursuant
to CPLR 213(2) ought to be applied is totally
without merit.
In the alternative, petitioner argues
that CPLR 213(1), providing for a six year
limitations period for actions "for which
9
no limitation is specifically prescribed by
law," ought to be applied.* In support of his
contention, petitioner cites only one case,
Clark v. Water Commissioners, 148 N.Y. 1
(1895), 42 N.E. 414, a case sui generis on
its facts and completely inapplicable to
actions for violations of civil rights se-
¥*¥Section 213(1) is commonly known as the
residual statute of limitations and is
normally applicable in cases where only
equitable relief is sought. See, Singleton
v. City of New York, 632 F. 2d 185 (2a
Cir. ). In the instant case, peti-
tioner seeks both legal and equitable re-
lief, i.e., reinstatement and damages
totalling $550,000. The Second Circuit
has held that when “a suit in aid of a
federally-created right is brought seeking
both legal and equitable relief, ‘equity
will withhold its remedy if the legal
right is barred by the local statute of
limitations.’ Russell v. Todd, 309 U.S.
280, 289 (1940)." Williams v. Walsh,
558 F. 2d 667 (2d Cir. 1977). Even when
only the equitable remedy of reinstate-
ment is sought, by the mere fact that the
plaintiff could have sought damages under
section 1983, he is not asserting "a fed-
eral right for which the sole remedy is in
equity." Swan v. Board of Higher Education,
319 F. 2d 56, 59- nN. ( re .
10
cured by the Constitution and laws of the
United States.* First, Clark concerns a
provision of the New York State Constitu-
tion, not the Federal Constitution and laws
enacted by Congress for the protection of
civil rights. Second, New York courts have
never applied the reasoning of Clark nor
the residual statute of limitations pro-
vided by CPLR 213(1) to civil rights ac-
tions pursuant to 42 U.S.C. §1983. See,
Staffen v. City of Rochester, 80 AD 2d 16
*Clark v. Water Commissioners, supra, 148
N.Y. 1, 42 N.E. 414, applied the predecessor
of CPLR 213(1) to a cause of action arising
under a statute providing for the obtaining
of compensation in the context of condemna-
tion proceedings because the statute did
not provide a statute of limitations. The
residual limitations period was not applied
because the underlying liability was grounded
in the state constitution provision. See,
Trippe v. Port of N.Y. Auth., 14 NY 2d 119
TISety, 198 NE 2d 585, applying a one year
limitations period to an action based on the
same constitutional provision as in Clark
because the statute providing the remedy so
directed.
ll
(4th Dept., 1981), 437 N.Y.S. 2d 821; Pitt v.
City of New York, (Sup. Ct., N.Y. Co.), New
York Law Journal, November 18, 1981, p. 4,
col. 4.
Since there is no reasonable basis for
applying a limitations period longer than
the three year period of CPLR 214(2), peti-
tioner's complaint was correctly dismissed.
The only question remaining for review by
this Court is whether the three year limi-
tations period of section 214(2) or a lesser
period is the most appropriate New York
statute of limitations to be applied. Any
of these limitations periods would require
dismissal of the complaint. Since this is
purely a question of state statutory con-
struction, it should be reviewed by this
Court only in a case where it would bear
upon the outcome.
12
POINT III
THE COURT OF APPEALS WAS CORRECT
IN APPLYING THE THREE YEAR STATUTE
OF LIMITATIONS PERIOD PURSUANT TO
CPLR 214(2).
CPLR 214(2) provides a three year
statute of limitations for "an action to re-
cover upon a liability, penalty or forfeiture
created or imposed by statute." Petitioner
argues that, in light of Chapman v. Houston
Welfare Rights Org., 441 U.S. 600 (1979),
holding that section 1983 does not secure
any rights, but merely provides a remedy,
and State v. Cortelle, 38 NY 2d 83 (1975),
341 NE 2d 223, holding that section 214(2)
is inapplicable to statutes which merely
provide additional remedies or standing for
pre-existing wrongs, section 214(2) cannot.
be applied to section 1983 actions because
section 1983 does not create or impose
13
a liability.*
We submit that the Corrt of Appeals was
correct in its application of section 214(2)
to this action since section 1983, though it
creates no rights, does create or impose a
liability upon anyone acting under color of
state law who violates rights, privileges,
or immunities secured by the Constitution
or laws of the United States. Without sec-
tion 1983, although petitioner would have
a right, no legal liability or obligation
would exist restraining a potential defen-
dant from violating that right. "If a claim
would not exist but for a statute, the claim
*®Chapman does not deal with the question
of shat statute of limitations applies in
a section 1983 action, but rather of
whether section 1983 can be considered
a statute securing civil rights for the
purpose of supporting jurisdiction pursu-
ant to 28 U.S.C. §1343(4). This Court
held that it did not secure any rights,
but merely provided a remedy.
14
is upon ‘a liability * * * created or im-
posed by statute’, and carries a three year
statute of limitations (CPLR 214, subd. 2)."
Klimcezak v. Connrex Corp., 49 AD 2d 1031,
1032 (4th Dept., 1975); 374 N.Y¥.S. 2d 84.
See also, Schmidt v. Merchants Despatch
Trans. Co., 270 N.Y. 287 (1936); 200 N.E.
324; People v. Duggan, 30 AD 2d 736 (3rd
Dept., 1968), 291 N.Y¥.S. 2d 582.
State v. Cortelle Corp., supra, 38
NY 2d 83, 341 NE 2d 223, holding section
214(2) inapplicable to statutes which merely
provide additional remedies or standing for
recognized pre-existing wrongs, is not to the
contrary. In Cortelle, the statutes, to which
the Court refused to apply section 214(2),
granted the Attorney General standing to sue
in certain cases where fraudulent practices
are alleged and provided additional remedies.
15
The Court held that the statutes
"create no new claims but only
provide particular remedies and
standing in a public officer to
seek redress on behalf of the
State and others. Moreover,
the kind of wrong the Attorney
General seeks to redress is not
a new one to the decisional law
but a now rather old and common
type of fraud.” State v. Cortelle,
supra, 38 NY 2d at 66, 341 NE
3, 225.
In the instant case, CPLR 214(2) ap-
plies because, prior to the enactment of
section 1983, there was no re dy for the
violation of the rights protected by the
statute nor was there a pre-existing legal
wrong.
Petitioner also argues that a conflict
exists between the Fifth Circuit's holding in
McMillian v. City of Rockmart, 653 F. 2d 907
(5th Cir. 1981), and the Second Circuit's
holding in the instant case. However, these
holdings do not, in fact, present any con-
16
flict since they are construing statutes ©
limitations completely distinguishable on
their face. In McMillian, the Court, in li
of Chapman v. Houston Welfare Rights Org.,
supra, 441 U.S. 600, which held that secti
1983 secured no rights, refused to apply a
Georgia statute of limitations applicable
to all suits for the enforcement of rights
accruing to individuals under statutes.
McMillian v. City of Rockmart, supra, 653
24 at 910. However, section 214(2), by it:
express wording, is applicable to causes <
action to recover upon liabilities create
imposed by statute. Since the McMillian s
ute applies to rights accruing under stat
and no rights accrue under section 1983,
appears the Court was correct in not appl
that period. This holding is entirely con
tent with that of the instant case, in wh
the statute applies to liabilities.
17
CONCLUSION
THE PETITION FOR A WRIT OF CERTIORARI
SHOULD BE DENIED.
February ll, 1982.
Respectfully submitted,
FREDERICK A. O. SCHWARZ, JR.
Corporation Counsel of the
City of New York,
Attorney for the Respondents.
LEONARD KOERNER,
EDWARD F. X. HART,
of Counsel.
18
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