Petition for Writ of Certiorari — Springfield Township School Dist. v. Knoll

Office - Supreme Court, U.S.

{ FILED

! (MAY 20 1963

THE SUPREME COURT OF THE UNITEDsSEATES & srevas.

October Term, 1982 on ten

SPRINGFIELD TOWNSHIP SCHOOL DISTRICT, a

political subdivision of the Commonwealth of Penn-

sylvania; ROMAN, LOUIS A., Superintendent,

Springfield Township School District; LAWN,

JOHN J., HANSHAW, MARIE M., COMMINS,

JAMES A., GOREN, SARA LEE, HOCK JR., WIL-

LIAM C., HOGUE JR., E. BURKE, KALISH,

SALLY, LIEBERMAN, MAX L. and TOBIN,

HARPUR M., Individually and as members of the

Board of School Directors, Springfield Township

School District,

Petitioners

v.

KNOLL, MADELIN H.,

Respondent

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT.

6S +

A Fo) dou

PETITION FOR WRIT OF CERTIORARI

Charles Potash, Esquire

515 Swede Street

Norristown, PA 19401

(215) 272-8400

Counsel of Record for Petitioners

Of Counsel:

Harris F. Goldich, Esquire

WISLER, PEARLSTINE, TALONE,

CRAIG & GARRITY

515 Swede Street

Norristown, PA 19401

(215) 272-8400

THE LEGAL INTELLIGENCER, 10th & SPRING GARDEN STREETS, PHILA, PA. 19123 (215) 236-2000

QUESTION PRESENTED FOR REVIEW

May a state six-month statute of limitations govern-

ing actions against public officials, which would other-

wise be applicable and bar a Section 1983 claim of em-

ployment discrimination on the basis of sex, be

disregarded on the ground that it is inconsistent with the

federal policy underlying the cause of action under con-

sideration?

TABLE OF CONTENTS

Pag

1. QUESTION PRESENTED FOR REVIEW ... i

es ree ee iti

3. REFERENCE TO OPINIONS DELIVERED IN

THE COURTS BELOW ..............

4. JURISDICTIONAL STATEMENT .........

5. CONSTITUTIONAL AND STATUTORY PRO-

VERSED MIVCMTEEED Soa wicicsvcncacs

6. STATEMENT OF THE CASE .............

7. ARGUMENT — REASONS RELIED ON FOR

THE ALLOWANCE OF THE WRIT

(i) The decision of the United States Court of

Appeals for the Third Circuit conflicts with

the decisions of other courts of appeals as to

whether six-month statutes of limitations

may, consistent with federal policy, be ap-

plied to federal civil rights actions. .....

(ii) The decision of the Court of Appeals con-

flicts with the decision of this Court in

Board of Regents v. Tomanio, infra, on a

matter which involves an important ques-

tion of federal law regarding application of

state statutes of limitations to federal civil

| rT Se

O. COUURAES ccc cvtdvgasenanesaneuen

QO. APUUED co snccwstsdeweseneseeeneeee

(A) Opinion of the United States Court of Ap-

peals for the Third Circuit ............

(B) Opinion of the United States District Court

for the Eastern District of Pennsylvania . . A-19

ii

TABLE OF CONTENTS— Continued )

(C) Judgment sought to be reviewed ....... A-29

(D) Order Denying Rehearing and Statement

of Judge Adams for Denial of Petition for

CON od wes kb egg a4 oes eee A-31

(E) Complaint filed in the District Court ... .A-36

TABLE OF AUTHORITIES

Cases: Page

Board of Regents v. Tomanio, 446 U.S. 478 (1980) 6, 8,

12, 13, 14, 15, 16, 17

Burns v. Sullivan, 619 F.2d 99 (ist Cir. 1980) cert.

denied 449 U.S. 893 (1980) ........ 6,9, 10, 14

Campbell v. Havernill, 155 U.S. 610 (1895) ..... 13

Carter v. Supermarkets General Corporation, 684

fe ed ee eee ee 9, 10

Chase Securities Corp. v. Donaldson, 325 U.S. 304

ed ati g beak arbi v's 9-<)4 0.6 4 Se 13

Davis v. United States Steel Supply, 581 F.2d 335,

I iS 6 Yom ae aie ws 17

Dewey v. University of New Hampshire, 694 F.2d

ED Co gti cas Sede ude 8 9. 10

Eshmont v. Commonwealth, No. 1390 C.D. 1981

(Pa. Commw. Ct.. filed November 24, 1981) . 8

Green v. Ten Eyck, 572 F.2d 1233 (8th Cir. 1978) 9,

10, 17

Holden v. Massachusetts Commission Against Dis-

crimination, 671 F.2d 30 (1st Cir. 1981) cert.

denied, U.S. , 103 S.Ct. 97(1982) . 9

Hussey v. Sullivan, 651 F.2d 74 (1st Cir. 1981). 9, 10

Johnson v. Railway Express Agency, Inc., 421 U.S.

8S EAS, eS Se Oa ane ee 6, 8, 13

Robertson v. Wegmann, 436 U.S. 584 (1978) .... 13,

16, 17

Skehan vu. Board of Trustees, 590 F.2d 470 ( 3d Cir.

1978) cert. denied, 444 U.S. 832 (1979) .... 17

1\

TABLE OF AUTHORITIES—/( Continued }

Cases: Page

Warren v. Norman Realty Co., 513 F.2d 730 (8th

Cir. 1974), cert. denied, 423 U.S. 855 (1975) 6.9

10. 14

Zipes v. Transworld Airlines, Inc., 455 U.S. 385

Sd he Ved 44 eas ds week ee | 7 7

Federal Statutes: Page

ee i, ce awe wk awl 2

42 U.S.C. Section 1981 ...... ign re pas 5

Blk i oe ara ‘$ ay 5

42 U.S.C. Section 1963 .......... ore or fae

RR re =i ee ei: 5

42 U.S.C. Section 1988 ..... Pos wae eee

42 U.S.C. Section 2000e-2 ........... 5. 7

42 U.S.C. Section 2000e-5(e) . Lao naked 16

42 U.S.C. Section 3610(b) ..... | | 16

State Statutes:

42 Pa.C.S. Section 5522(b)(1) ...... 15.8

42 Pa.C.S. Section 5527(6) ..... |

OFFICIAL AND UNOFFICIAL REPORTS

OF OPINIONS

DELIVERED IN THE COURTS BELOW

(1) Knoll v. Springfield Township School District,

699 F.2d 137 (3d Cir. 1983), rehearing denied, 699 F.2d

137 (3d Cir. 1983)

(2) Knoll v. Springfield Township School District,

unreported, (E.D. Pa., filed March 19, 1982.)

2

JURISDICTIONAL STATEMENT

(1) The judgment sought to be reviewed was filed

on January 27, 1983;

(2) An order denying rehearing was entered on

February 23, 1983.

(3) 28 U.S.C. Section 2101 (c) confers jurisdiction

on this Court to review the judgment in question by Writ

of Certiorari.

3

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves the following constitutional and

statutory provisions:

(1) Section 1 of the Civil Rights Act of 1871, as

amended, 42 U.S.C. Section 1983, which provides

as follows:

CIVIL ACTION FOR DEPRIVATION

OF RIGHTS

Every person who, under color of any stat-

ute, 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 im-

munities secured by the Constitution and laws,

shall be liable to the party injured in an action

at law, in equity, or other proper proceeding for

redress.

(2) 42 U.S.C. Section 1988, which provides as

follows:

PROCEEDINGS IN VINDICATION

OF CIVIL RIGHTS

The jurisdiction in civil and criminial mat-

ters conferred on the district courts by the pro-

visions of this chapter and Title 18, for the pro-

tection of all persons in the United States in

their civil rights, and for their vindication, shall

be exercised and enforced in conformity with

the laws of the United States, so far as such

laws are suitable to carry the same into effect;

but in all cases where they are not adapted to

the object, or are deficient in the provisions

necessary to furnish suitable remedies and

punish offenses against law, the cormmon law,

as modified and changed by the constitution

4

and statutes of the State wherein the court hav-

ing jurisdiction of such civil or criminal cause

is held, so far as the same is not inconsistent

with the Constitution and laws of the United

States, shall be extended to and govern the said

courts in the trial and disposition of the cause,

and, if it is of a criminal nature, in the infliction

of punishment o.: the party found guilty.

(3) Section 5522 (b)(1) of the Pennsylvania

Judicial Code, 42 Pa. C.S. Section 5522 (b)(1),

which provides:

(b) Commencement of Action Required — the

following actions and proceedings must be

commenced within six months:

(1) An action against any officer of any

government unit for anything done in the

execution of his office, except an action subject

to another limitation specified in _ this

subchapter.

(4) Section 5527(6) of the Pennsylvania

Judical Code, 42 Pa. C.S. Sectiun 5527(6) which

provides:

SIX YEAR LIMITATION

The following actions and proceedings

must be commenced within six years:

.. . (6) Any civil action or proceeding

which is neither subject to another limitation

specified in this subchapter nor excluded from

the application of a period of limitation by

Section 5531 (reiating to no limitation).

5

STATEMENT OF THE CASE

Respondent, Madelin Knoll, commenced this suit to

redress alleged discrimination on the basis of sex by her

employer, the School District of Springfield Township

(the “School District”). One of her claims sought relief

under 42 U.S.C. Section 1983.' The School District De-

fendants moved for summary judgment on the ground

that the Section 1983 claim was barred by the Pennsy]-

vania six-month statute of limitations governing actions

against public officials.2 The District Court agreed.*

The Court of Appeals, in a panel decision, reversed

on the ground that the Pennsylvania six-month limita-

tion period was inherently inconsistent with the federal

policies to be fostered by Section 1983.4 In doing so, it

reasoned that the “average citizen is not sufficiently con-

versant” with constitutional law to file an action within

six months of the ocurrence of alleged discrimination;

that the six month period would have a tendency “to se-

verely limit access” to the federal courts, thereby

conflicting with the remedial spirit of Section 1983; and

that, alternatively, a six-month limitation “would be in-

consistent with the legislative history and subsequent

judicial construction of [the Civil Rights Act]”. The court

based its last conclusion upon its review of Sections

198), 1982 and 1985 of Title 42 of the United States

Code which afford relief against non-governmental de-

fendants and held that, because different lirnitation peri-

ods would apply to those private parties, a lack of uni-

formity would result which, in turn, would violate the

policies underlying Section 1983.

1. In the alternative, the employee sought relief under Section

703 of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section

2000e-2 (“Title VII"). See Appendix, A-36, for a copy of Respon-

dent’s Complaint.

2. 42 Pa CS. Section 5522(b)(1).

3. See Appendix, A-19, for a copy of the District Court opinion.

4. See Appendix, A-1, for a copy of the Court of Appeals deci-

sion.

6

The School District Defendants applied for

rehearing. The application was denied, with four judges

voting to grant rehearing in banc.* Judge Adams, writ-

ing on behalf of the dissent, noted that the panel’s deci-

sion conflicted with the decisions of the First and Eighth

Circuits® and that the panel’s Opinion failed to follow

this Court’s admonition in Board of Regents v. Tomanio,

446 U.S. 478 (1980), that it was “to give weight to the

significant policies underlying the state statute of limita-

tions.” The dissent further took issue with the panel’s

failure to explain “with any precision” why the limita-

tions period could not be squared with the policies

underlying the civil rights statutes and criticized its con-

clusion, made without citation to any evidence or empiri-

cal data,’ that six months was too short a time for the

“average plaintiff” to file a Complaint. In doing so, Judge

Adams noted that a time limit of 180 days had some-

times been prescribed by Congress for the filing of

charges under civil rights statutes, including Title VII,

and questioned whether there was any basis for con-

cluding that Congress would permit a Title VII claim to

be barred after the passage of 180 days and not have in-

tended a Section 1983 claim, based on the same opera-

5. See Appendix, A-31, for a copy of the Order denying

Rehearing and Statement Sur Denial of Petition for Rehearing.

6. Judge Adams made reference to Burns vs. Sullivan, 619

F.2d 99 (ist Cir 1980), cert. denied, 449 U.S. 893 (1980) and War-

ren vs. Norman Realty Co. 513 F.2d 730 (8th Cir. 1974), cert. de-

nied, 423 U.S. 855 (975). See pp. 9-11 infra.

7. The of this case is completely devoid of any aver-

ments. _ documents or other evidence or data relating to

the time to prepare and file a Section 1983 complaint. The

public policy issue was not raised by Ms. Knoll before the District

Court in which the only argument advanced in opposition to the ap-

plication of the six-month limitation period was that that limitation

was not the analogous statute of limitations to be applied under the

rules in Johnson v. Railway Express Agency, Inc., 421 U.S. 454

(1975), and Tomanio, supra. (Brief in Opposition to Defendants’

Motion for Summary Judgment).

7

tive facts, to be similarly barred by a six-month state stat-

ute of limitations.®

Ms. Kroll asserted as a basis for subject matter ju-

risdiction in the District Court the Civil Rights Acts of

1871 and 1964.9

8. The facts underlying the civil rights claims as pleaded in Re-

spondent’s Complaint are as follows:

In July or August, 1979, a man was appointed to the position of

Administrative Assistant of the School District—a position for

which Ms. Knoll had applied. On August 2, 1979, the Superin-

tendent notified Ms. Knoll of that action. On May 28, 1980, Ms.

Knoll was advised by a letter from the Superintendent that she

would not be appointed to any administrative position for the

1980-1981 school year. In September 1980, the Administrative

Assistant was promoted to Assistant Superintendent—a posi-

tion for which Mr. Knoll had not applied.

Ms. Knoll then filed a Complaint with the EEOC on December

12, 1980 in which she stated that it was her belief that had she

been selected for the position of Administrative Assistant in

July 1979, that she would have been promoted to Assistant Su-

perintendent in 1980. The charges were dismissed by the

EEOC “because it was untimely filed.”

This suit was commenced in District Court on April 21, 1981.

9. 42 U.S.C. Sections 1983 and 2000e-2. The District Court

has jurisdiction of civil rights’ claims pursuant to 28 U.S.C. Sec-

tions 1331, 1343, 2201, 2202 and 42 U.S.C. Section 2000

(e-5\f(3.). In the District Court, the School District Defendants

challenged subject matter jurisdiction because this action was com-

menced before the decision of this Court in Zipes v. Transworld

Airlines, Inc., 455 U.S. 385 (1982).

8

REASONS FOR ALLOWANCE OF CERTIORARI

I. The decision of the United States Court of Appeals for

the Third Circuit conflicts with the decisions of

other courts of appeals as to whether six-month

statutes of limitations may, consistent with federal

policy, be applied to federal civil rights actions.

Federal law specifies no statute of limitations for ac-

tions under Section 1983. Johnson v. Railway Express

Agency, Inc., 421 U.S. 454 (1975) (“Johnson”). Section

1988 of Title 42 fills that void by requiring federal courts

adjudicating civil rights claims to refer to state law

“when federal law provides no rule of decision”. Board

of Regents v. Tomanio, 446 U.S. 478, 484 (1980)

(“Tomanio”). Thus, the applicable limitations period is

that which would govern in the courts of the forum state

in an action seeking similar relief under state law unless

that limitations period is “inconsistent with the Consti-

tution and law of the United States” or “with the federal

policy underlying the cause of action under consider-

ation.” Johnson, supra, at 465.

In this case, the Court of Appeals initially applied

that standard and determined that the six-month limita-

tion period of 42 Pa.C.S. Section 5522(b)(1) would have

governed Ms. Knoll’s claims had she brought her action

under state law, in state court.'° In so ruling, the Court

of Appeals determined that had Ms. Knoll’s claims been

brought in state court, her action would have been time

barred.''! The panel, however, determined that applica-

tion of the six-month statute of limitations would “con-

travene the remedial purpose of federal civil rights ac-

tions and deny [Ms. Knoll] the breadth of Section 1983's

10. Eshmont vs. Commonwealth, No. 1390 C.D. 1981 (Pa.

Commw. Ct. November 24, 1981).

11. As noted above, the last asserted discriminatory act oc-

curred, if at all, in September 1980 and suit was not commenced

until April 21, 1981. See fn. 8, supra.

9

sweep.” It reasoned, in substance, that the six-month

limitation period did not leave the court’s doors open

long enough to permit a plaintiff injured by state action

to prevail and was therefore “inconsistent with the fed-

eral interest sought to be vindicated.”

In reaching this conclusion, the Court below did not

address or attempt to distinguish the decisions of the

First and Eighth Circuits upholding the application of

six-month limitation periods to civil rights claims. !2

Specifically, in Burns v. Sullivan, supra, the Court

applied the Massachusetts six-month statute of limita-

tions governing actions for racial discrimination in pub-

lic employment and promotion to bar Section 1983 and

1985(3) claims. In that case, a police officer asserted

that he had been wrongfully passed over for promotion

because of his race. The District Court granted sum-

mary judgment in favor of the public employer based on

the Massachusetts six-month limitation period. The

Court of Appeals for the First Circuit affirmed. In doing

so, it considered and rejected the contention that a six-

month limitation period was inconsistent with federal

policy:

Although it may take more than six months to

properly prepare a civil rights case, a complaint

meeting the requirements of Fed. R. Civ. P. 8(a)

can surely be filed in that time. Any amendments to

the complaint and supplemental pleadings may be

sought after suit is brought. Fed. R. Civ. P. 15.

12. Burns vs. Sullivan, 619 2d 99 (1st Cir. 1980) cert. denied

449 U.S. 893 (1980); Hussey vs. Sullivan, 651 F.2d 74 (1st Cir.

1981); Holden vs. Massachusettes Commission Against Discrimi-

nation, 671 F.2d 30 (ist Cir. 1981), cert. denied, —— U.S. ——.,

103 S. Ct. 97 (1982); Carter vs. Supermarkets General Corp., 684

F 2d 187 (1st Cir. 1982); Dewey vs. University of New Hampshire,

694 F.2d 1 (lst Cir. 1982); Warren vs. Norman Realty Co., 513

F.2d 730 (8th Cir. 1974) cert. denied, 423 U.S. 855 (1975); Green

us. Ten Eyck, 572 F.2d 1233 (8th Cir. 1978).

10

_.. In our view, although this rule shortens

considerably the time in which an aggrieved person

can bring a Section 1983 action for . . . discrimina-

tion in public employment, it conflicts with no fed-

eral policy and enhances the ability of the state to

resolve its own personnel problems. The time period

is no shorter than the six-month period available to

federal and state employees under Title VII of the

Civl Rights Act of 1964 for initiation of a complaint

of . . . discrimination in employment. {citations

omitted]. Burns v. Sullivan, supra, at 106-107.

The Court in Burns also emphasized the “important pol-

icy reasons” which support using the limitations of a

state statute protecting the same rights sought to be vin-

dicated by a federal civil rights action: that a longer limi-

tations period for the federal action would encourage

public employees to bypass state proceedings and force

the federal courts, in the first instance, to become in-

volved in the resolution of local government personnel

matters. Burns v. Sullivan, supra, at 107.

The First Circuit has consistently followed its hold-

ing in Burns v. Sullivan, supra. For example, in Carter

v. Supermarkets General Corporation, 684 F.2d 187 (1st

Cir. 1982), and Hussey v. Sullivan, 651 F.2d 74 (1st Cir.

1981), the Court applied the Massachusetts’ six-month

statute of limitations governing suits for discrimination.

In Dewey v. University of New Hampshire, 694 F.2d 1

(1st Cir. 1982), the Court applied the New Hampshire

“Law Against Discrimination” ninety-day statute of limi-

tations to bar a Section 1983 due process and equal pro-

tection claim.

The Eighth Circuit Court of Appeals has reached a

similar result. In Warren v. Norman Realty Co., 513

F.2d 730 (8th Cir. 1974), cert. denied, 423 U.S. 855

(1975) and Green v. Ten Eyck, 572 F.2d 1233 (8th Cir.

1978), the Court applied to federal civil rights claims

challenging local housing practices the 180-day limita-

1]

tion period imposed by Nebraska's and Missouri's fair

housing laws. '!*

The Third Circuit did not address and did not at-

tempt to distinguish the decisions of the First and

Eighth Circuits cited above. Furthermore, in reaching

its decision, the panel did not consider the important

state policies reflected in the Pennsylvania statute of

limitations and did not delineate or consider the

conflicting federal policies. Instead, from a vacuum

caused by the absence of any evidence or empirica: data

on the question, the Court formed its own judgment as

to what limitation period appeared fair and reasonable

for the commencement of a civil rights action. For this

reason, and because the result reached conflicts with

the decisions of the First and Eighth Circuits, certiorari

should be granted to review the judgment below.

13. At least 33 states have statutes of limitations of less than

one vear which, arguably, could be applied to civil rights actions. In

addition to Massachusettes, New Hampshire, Nebraska, Missouri.

cited in the text, see:

ARIZ. REV. STAT. ANN §41-1481 (six-month limitation:

employment discrimination); COLO. REV. STAT. §24-34-504

(ninety day limitation; housing discrimination); CONN. GEN.

STAT. §462-82 (six-month limitation; employment discrimina-

tion); DEL. CODE ANN. tit. © §4605 (six-month limitation:

housing discrimination); FLA. STAT. ANN. §23.167 (six-

month limitation; employment discrimination); GA. CODE

ANN. §89-1714 (six-month limitation; employment discrimi-

nation); HAWAII REV. STAT. §378-4 (ninety day limitation:

discrimination action); ILL. REV. STAT. ch. 68 §7-102 and

103 (one hundred eighty day limitation; civil rights violation ):

IND. CODE ANN. §34-4-16.5-7 (one hundred eighty day limi-

tation; political subdivision claim). IOWA CODE ANN. §601

A.15(12) (one hundred eighty day limitation; employment dis-

crimination); KAN. STAT. ANN. §44-1004 and 1005 (six-

month limitation; employment discrimination); KY. REV

STAT. §344.200 (six-month limitation: employment discrimi-

nation); ME. REV. STAT. ANN. tit. 5 §4611 (six-month limita-

tion; employment discrimination); MASS. GEN. LAWS ANN

ch. 151B §5 (six-month limitation; employment discrimina-

tion), MICH. STAT. ANN. §3.548(601) II (b) (ninety day limi-

12

Il. The decision of the Court of Appeals conflicts with

the decision of this Court in Board of Regents v.

Tomanio, supra, on a matter which involves an im-

portant question of federal law regarding applica-

tion of state statutes of limitations to federal civil

rights actions.

Contrary to this Court’s directive in Tomanio, supra,

the Third Circuit failed to consider and give proper

weight to the Pennsylvania state policy underlying its

statute of limitations for actions against public officials.

As Judge Adams observed in his dissent from the denial

of rehearing:

There is no indication that the opinion in the

present case follows Tomanio’s direction to give

weight to the significant policies underlying the

state statute of limitations. 699 F.2d, at 147.

tation; employment discrimination); MINN. STAT. ANN.

§363.06 (six-month limitation; employment discrimination);

MO. ANN. STAT. §213.120 (one hundred eighty day limita-

tion, housing discrimination), MONT. CODE ANN. §49-2-501

(six-month limitation; employment discrimination); NEB.

REV. STAT. §20-119 (six month limitation, housing discrimi-

nation); NEV. REV. STAT. §613.430 (six month limitation,

employment discrimination); N.H. REV. STAT. ANN. §354

A:10 (ninety day limitation; discrimination action); N.J. REV.

STAT. §10:5-18 (six-month limitation; discrimination action);

N.M. STAT. ANN. §28-1-10 (ninety day limitation; discrimina-

tion action); OHIO REV. CODE ANN. §4112.05 (six-month

limitation; discrimination action); OKLA. STAT. ANN. tit. 25

§ 1501 (six-month limitation; discrimination action); R.1. GEN.

LAWS §28-6-10 (four month limitation; employment discrimi-

nation); S.C. CODE ANN. §65-2D(1) (six-month limitation,

employment discrimination); S.D. CODIFIED LAWS §20-13-

31 (one hundred eighty day limitation; discrimination action);

TENN. CODE ANN. 4-21-117 (one hundred eighty day limita-

tion; discrimination action); UTAH CODE ANN. 34-35-7(15)

(thirty day limitation; discrimination action); VA. CODE §36-

94 (one hundred eighty day limitation; housing discrimina-

tion); W.VA. CODE §5-11-10 (ninety day limitation; discrimi-

nation action); WYO. STAT. §27-9-106 (ninety day limitation;

employment discrimination ).

13

The failure of the court below properly to apply the

Tomanio test justifies review by this Court.

The rule in Tomanio is clear. In civil rights actions,

“state statute(s) of limitations .. . are more than a tech-

nical obstacle to be circumvented if possible. In most

cases, thev are binding rules of law.” 446 U.S., at 484. It

is only in the event that the policies underlying the state

statute of limitations are inconsistent with the federal

policies to be fostered by the civil rights statutes, that the

state statute may be ignored. 446 U.S., at 487. In this

case, the Third Circuit not only failed to allow this rule,

but even failed to consider the policies on which the

state statute is based.

State statutes of limitations represent the consid-

ered judgment of the state legislature “concerning the

point at which the interests in favor of protecting valid

claims are outweighed by the interest in prohibiting the

prosecution of stale ones.” Johnson, supra, at 463-464.

See also, Chase Securities Corp. v. Donaldson, 325 U.S.

304, 313 (1945). The provisions of 42 U.S.C. Section

1988 — that federal courts adjudicating civil rights

claims are to refer to state law “when federal law pro-

vides no rule of decision,” Tomanio, supra, at 484 — re-

flects the intent of Congress that a federal court’s reli-

ance “on the State’s wisdom in setting a limit”, is proper.

Johnson, supra, at 464. Thus, in general, a state statute

of limitations which does not discriminate against fed-

eral rights and which gives the party a reasonable time

to sue must be applied. Campbell v. Haverhill, 155 U.S.

610, 615-616 (1895). Further, a state statute of limita-.

tions does not discriminate against federal rights and

“cannot be considered ‘inconsistent’ with federal law

merely because the statute causes the plaintiff to lose

the litigation.” Tomanio, supra, at 488. See also, Robert-

son v. Wegmann, 436 U.S. 584 (1978). As stated by this

Court in Tomanio:

This is obviously a judicial recognition of the fact

that congress, unless it has.spoken to the contrary,

14

did not intend by the mere creation of a “cause of

action” or “claim for relief” that any plaintiff filing a

Complaint would automatically prevail if only the

necessary elements of the federal substantive claim

for relief could be established. Thus, in general,

state policies of repose cannot be said to be

disfavored in federal law. Tomanio, supra, at 488.

For these reasons, the “borrowing” of state statutes

of limitations in the context of Section 1983 claims does

not contravene the two principal policies embodied in

the civil right act: “deterrence and compensation.”

Tomanio, supra, at 488-489. If the Court of Appeals had

applied that standard in this case and, specifically, had

considered the state policies at issue, it should not have

rejected the application of the Pennsylvania six-month

statute of limitations to bar Ms. Knoll’s Section 1983

claims. See Burns v. Sullivan, supra and Warren v. Nor-

man Realty Co., supra.

Pennsylvania’s six-month limitation period for

claims against public officials clearly fosters important

state policies beyond those reflected in limitation stat-

utes generally. First, state and local governments are

more likely to experience frequent changes in personnel

than other employers. Because public officials’ contin-

ued service is subject to the will of the electorate, even a

short passage of time may result in the departure from

government of persons with knowledge of the circum-

stances surrounding the claim. Further, upon their de-

parture from government, formal officials may be reluc-

tant to cooperate fully in assisting in the defense of

claims burdening their successors or political oppo-

nents. This factor, in addition to the large volume of

business and transactions handled by government, often

creates serious problems in keeping track of and mar-

shalling the witnesses and documentary evidence nec-

essary to defend against claims of discrimination. Sec-

ondly, and specifically applicable to cases involving

discrimination in the hiring or promotion of public em-

EE CE A NN

15

ployees, prompt assertion and resolution of claims is

crucial. Each day of delay in the bringing of a claim fur-

ther entrenches the hired or promoted employee in his

position and entitles the hired or promoted employee to

seniority, tenure, due process rights and the iike. This,

in turn, would further burden the government with the

potential for further litigation in the event its conduct

was ultimately found to be discriminatory. With prompt

commencement of an action within the six-month

period, the government employer could take steps to

lessen or totally eliminate this problem. Thirdly, the

prompt assertion and resolution of claims against the

government is necessary to protect tax revenues and to

promote sound fiscal planning. As a general rule, gov-

ernments are prohibited from making expenditures for

which they have not budgeted. These considerations in

the context of this case, provide additional justification

for respecting the state’s choice.

When these state policies are considered and evalu-

ated, it is clear that they in no way conflict with the fed-

eral interests secured by the civil right acts. The “princi-

pal policies embodied in Section 1983 [are] deterrence

and compensation.” Tomanio, supra, at 488. These poli-

cies are not significantly effected by Pennsylvania's stat-

ute. Claims can be readily enforced, compensation can

be readily received and deterrence can be readily fos-

tered if suit is commenced while the claim is fresh.

The conclusion of the Third Circuit that six months

simply is too short a time for the filing of a claim is

unsupported and unsupportable. First, in the context of

this case, the conclusion was made without any basis in

the record evidence or empirical data from any source

whatsoever. Thus, even had the panel made an attempt

to do so, it could not have demonstrated by specific refer-

ence to the facts of this case that six months was insuffi-

cient for Ms. Knoll or any hypothetical “average plain-

tiff’ to file a Complaint. Certainly, Congress did not

16

believe 180 days was inherently too short a time in

which to require the commencement of civil right pro-

ceedings. See, 42 U.S.C. Section 2000e-5(e) (employ-

ment discrimination); 42 U.S.C. Section 3610(b) (hous-

ing discrimination). Further, as noted by Judge Adams

in his dissent, the liberal amendment provisions of the

federal rules substantially minimizes any burden to

which a plaintiff might be subjected by the requirement

that a Complaint be filed within six months.

The Court of Appeals’ reliance upon the federal poli-

cy, that vindication of individual rights is to be favored,

was also misplaced. Once again, the six-month statute of

limitations has no direct impact on that policy. Appar-

ently, the Third Circuit was concerned that some rights

will not be vindicated because the statute will bar the

claim. This concern is unfounded in light of this Court's

directive that “a state statute cannot be considered ‘in-

consistent’ with federal law merely because the statute

causes the plaintiff to lose the litigation.” Robertson v.

Wegmann, supra, at 593.

In rejecting the six-month limitation period, the

Court of Appeals additionally reasoned that the applica-

tion of the six-month period to actions against public of-

ficials would lead to the application of different limita-

tion periods to different types of civil rights actions and

concluded that this would violate what it considered to

be a congressional policy of uniformity. 699 F.2d at 143-

144. In this regard, the Court again departed from the

holding of this Court in Tomanio, Specifically, as noted

by this Court in Tomanio:

Uniformity has also been cited as a federal policy

which sometimes necessitates the displacement of

an otherwise applicable state rule of law. [citation

omitted]. The need for uniformity, while paramont

under some federal statutory schemes, has not been

held to warrant the displacement of state statutes of

limitations for civil rights actions {citation omitted].

Tomanio, supra, at 489.

ee

17

For these reasons, considerations of “uniformity” should

not have controlled the decision in this case. Clearly

cemgressional reliance on state law, as provided by 42

U.S.C. Section 1988, obviously pre-supposes lack of na-

tionwide uniformity. Robertson v. Wegmann, supra, at

594, n. 1. The same rationale applies here. If Congress

had no difficulty with application of varying limitations

for the very same cause of action brought in different

states, it is not reasonable to conclude that federal policy

a om ee =e Npeg =e by the application of

ae

eee oo os - different causes of action

For these reasons, the Third Circuit, when it re-

jected the Pennsylvania six-month statute of Samide

failed to follow this Court’s directives in Tomanio The

Court below had no substantial basis for negating the

state’s considered judgment that claims against public

officials are to be commenced within six months. The

Third Circuit did not consider the significant state poli-

cies which prompted the enactment of the six-month

Statute and, as a result, failed to compare “these state

and federal policies which the respective legislatures

sought to foster.” Tomanio, supra, at 487. This Court.

therefore, should grant certiorari to revi j

a review the judgment

14. The relative unimportance of considerations of uniformi

as compared with snesthuetenedithecntondintenedienstin te

state statutory limitations scheme has been uniformly recognized

by decisions of the Third Circuit made prior to the enactment of the

Pennsylvania judicial code. See, e.g., Skehan vs. Board of Trustees

590 F.2d 470-77 (3d Cir. 1978), cert. denied, 444 U.S. 832 (1979).

Davis vs. United States Steel Supply, 581 F.2d 335, 337-41 (3d Cir

1978). That is, the Third Circuit itself, prior to the enactment of the

Pennsylvania judicial code, segregated various aspects of civil rights

claims and applied the different, analogous state limitations periods

to each separate claim. This type of reasoning has also been applied

by the Eighth Circuit Court of Appeals. For example, in Green us

Ten Eyck, supra, the court sanctioned the application of different

statutes of limitations to suits seeking redress for discrimination

against public officials as opposed to analogous suits again

individuals. Green vs. Ten Eyck, supra, at 1238-39. ee

18

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the decision of the United States Court of Ap-

peals for the Third Circuit.

Respectfully submitted,

WISLER, PEARLSTINE, TALONE,

CRAIG & GARRITY

By: Charles Potash

Harris F. Goldich