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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 288

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0011%3A02. Public record. Not legal advice.