Amicus Curiae Brief — Jones v. RR Donnelley & Sons Co.

No. 02-1205

In the Supreme Court of the United States

EDITH JONES, ET AL., ON BEHALF OF HERSELF AND

A CLASS OF OTHERS SIMILARLY SITUATED, PETITIONERS

V.

R. R. DONNELLEY & SONS COMPANY

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

THEODORE B. OLSON

Solicitor General

Counsel of Record

J. MICHAEL WIGGINS

Acting Assistant Attorney

General

PAUL D. CLEMENT

Deputy Solicitor General

GREGORY G. GARRE

Assistant to the Solicitor

General

DENNISJ. DIMSEY

LINDA F. THOME

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether a claim for racial discrimination relating to the

terms or conditions of employment in violation of 42 U.S.C.

1981 is governed by the uniform federal statute of limitations

established by 28 U.S.C. 1658(a), or a varying limitaions

period borrowed from the law of the forum state.

TABLE OF CONTENTS

r —————————

Argument:

The uniform statute of limitations established by

28 U.S.C. 1658(a) governs any claim for racial

discrimination relating to the terms or conditions of

employment in violation of 42 U.S.C. 1981 that was

not actionable until the Civil Rights Act of 1991

A. Section 1658(a) applies to any claim or cause of

action that was created by or necessarily depends

on an Act of Congress enacted after December

Ee

B. Section 1658(a) governs a demand under Section

1981 based on racial discrimination that was not

actionable until Congress enacted the Civil Rights

111111 ——ů

C. The Court of Appeals erred in concluding that

the uniform limitations period supplied by

Section 1658(a) does not apply to the Section 1981

claims at issue —

Z e

e unseemmnneene

TABLE OF AUTHORITIES

Cases:

American Well Works Co. v. Layne & Bowler Co.,

. — —

Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002)

Beck v. Prupis, 529 U.S. 494 (2000) . .

(IIT)

— — —

14

la

IV

Cases—Continued: Page

Christianson v. Colt Indus. Operating Corp., 486

CO EE 12, 13, 17

Circuit City Stores, Inc. v. Adams, 532 U.S. 105

(2001) .... 26

Connecticut Nat'l Bank v. Germain, 503 U.S. 249

(1992) 9

Evans v. United States, 504 U.S. 255 (1992) 11

Franchise Tax Bd. v. Laborers Vacation Trust,

463 U.S. 1 (1983) 12,17

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) 25

Gordon v. National Youth Work Alliance, 675 F.2d

356 (D.C. Cir. 1982) .... 25

Harris v. Allstate Ins. Co., 300 F.3d 1183 (10th Cir.

2002) 10, 16, 18, 19, 27, 28

Heckler v. Ringer, 466 U.S. 602 (1984) 13

Holmes Group, Inc. v. Vornado Air Circulation

Sys., Inc., 535 U.S. 826 (2002) 13, 16, 27

INS v. Chadha, 462 U.S. 919 (1983) 10

Landgraf v. USI Film Prods., 511 U.S. 244

(1994) 8, 22

Merrell Dow Pharm., Inc. v. Thompson, 478 U.S.

804 (1986) ... * 12

Morissette v. United States, 342 U.S. 246 (1952) 9

National R. R. Passenger Corp. v. Morgan, 536 U.S.

101 (2002) 27

North Dakota v. United States, 460 U.S. 300

(1983) 20

North Star Steel Co. v. Thomas, 515 U.S. 29

(1995) 22, 24

Osborn v. Bank of United States, 22 U.S. (9

Wheat.) 738 (1824) 11

Patterson v. McLean Credit Union, 491 U.S. 164

(1989) 2, 3, 6, 7, 14, 15, 16, 28

Rivers v. Roadway Express, Inc., 511 U.S. 298

(1994) 2, 3, 6-7, 8, 15, 16, 20

Cases—Continued: Page

Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194

(1st Cir. 1987) 25

Short v. Belleville Shoe Mfg. Co., 908 F.2d 1385

(7th Cir. 1990), cert. denied, 501 U.S. 1250 (1991) 22

Smith v. Kansas City Title & Trust Co., 255 U.S.

180 (1921) 12

South Dakota v. Yankton Sioux Tribe, 522 U.S.

329 (1998) 26

Turner v. Glickman, 207 F.3d 419 (7th Cir. 2000) ........... 20

United States v. Gonzalez, 520 U.S. 1 (1997) 26

United States v. Ron Pair Enters., Inc., 489 US.

235 (1989) 9

United States v. Welden, 377 U.S. 95 (1964) 20

Verlinden B. V. v. Central Bank, 461 U.S. 480

(1983) 11

Weinberger v. Salfi, 422 U.S. 749 (1975) 13, 17

Williams v. Taylor, 529 U.S. 420 (2000) 9

Wilson v. Garcia, 471 U.S. 261 (1985) 3, 24, 25

Your Home Visiting Nurse Servs., Inc. v. Shalala,

3 — —⅛ʃ . 13

Zubi v. AT&T Corp,, 219 F.3d 220 (3d Cir. 2000) 10, 16,

22, 27

Constitution and statutes:

U.S. Const.

0 10, 14

Art. III 11

— — — —— — 11

Act of July 30, 2002, Pub. L. No. 107-204, § 804(a),

116 Stat. 801 4

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

et seq. 27

42 U.S.C. 2000e-5(e)(1) 27

Civil Rights Act of 1991, Pub. L. No. 102-166, 105

Stat. 1071 14

§ 3(4), 105 Stat. 1071

VI

Statutes—Continued: Page

a 2. 3, 19, 25, 26

11K passim, la

D 2. 7, 7, la

1 11—— T1 2, 5, 7, 15, 16, 17, 2a

3227 ee 2. 2a

1K 2 2⁵

Gee. ————— 3, 24, 25

Federal Courts Study Committee Implementation Act

of 1990, Pub. L. No. 101-650, Tit. III, § 313(a), 104

11üü—T—d́— ß — 3

rr 4, 1a

I- passim

re... 4

1ͤ̃ͤ˙ LL—᷑—-.. —. —— — 10

1̃ͤ̃· —.... — —— — 10

1 Tk. — —ꝗ—x—x— — 20

rr. 5

e.. —ʃP‚!⁴. 11, 12, 13

xxx ¶ 11, 13

1 ?8—ääͤüä„%»%e — 13, 17

Miscellaneous:

American Heritage Dictionary (3d ed. 1992) 10, 14

William C. Anderson, A Dictionary of Law (1996) 10, 15

136 Cong. Rec. 36,292 (19900 —————.—————— „ 23

Black s Law Dictionary (5th ed. 1979) 10, 14, 15

Felix Frankfurter, Some Reflections on the Reading

of Statutes, 47 Colum. L. Rev. 527 (1947) 11

H.R. Rep. No. 644, 101st Cong., 2d Sess. Pt. 1 (1990) 26

H.R. Rep. No. 734, 101st Cong., 2d Sess. (1990) . 21, 23, 24, 27

H.R. Rep. No. 40, 102 Cong., Ist Sess. Pt. 1 (1991) 25, 26

Memorandum from R. Marcus, Assoc. Reporter, to

Workload Subcomm. (Sept. 1, 1989), reprinted in 1

Federal Courts Study Committee, Working Papers

and Subcomm. Reports App. (19900) ——— 23, 24

Oxford English Dictionary (1933 —d. . —.. 10, 14

VII

Miscellaneous Continued: Page

Report of the Federal Courts Study Committee

EN 4, 23

S. Rep. No. 315, 101st Cong., 2d Sess. (1990) . . 26

Frederic J. Stimson, Glossary of Technical Terms,

Phrases, and Maxims of the Common Law (1881) ......... 10

~ ä—jGG[— — — —

In the Supreme Court of the United States

No. 02-1205

EDITH JONES, ET AL., ON BEHALF OF HERSELF AND

A CLASS OF OTHERS SIMILARLY SITUATED, PETITIONERS

Vv.

R. R. DONNELLEY & SONS COMPANY

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case involves 42 U.S.C. 1981 (Section 1981) and the

Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071,

which amended Section 1981 and Title VII of the Civil

Rights Act of 1964, 42 U.S.C. 2000e et seg. The availability of

actions under Section 1981 affects the United States’ role in

enforcing Title VII and related civil rights laws. In addition,

this case involves the four-year statute of limitations estab-

lished by 28 U.S.C. 1658(a), which presumptively applies to

any “civil action arising under an Act of Congress enacted

after [December 1, 1990],” ibid., and may apply in actions in

which the United States or a federal entity is a party.

STATEMENT

I. a. Section 1981 of Title 42 U.S. C., one of the Nation’s

oldest civil rights laws, provides that “[a]ll persons within

the jurisdiction of the United States shall have the same

(1)

right in every State and Territory to make and enforce

contracts * * * as is enjoyed by white citizens.” 42 U.S.C.

1981(a). In Patterson v. McLean Credit Union, 491 U.S. 164,

171 (1989), this Court held “that racial harassment relating

to the conditions of employment is not actionable under

§ 1981 because that provision does not apply to conduct

which occurs after the formation of a contract and which

does not interfere with the right to enforce established

contract obligations.” Rather, the Court explained, Section

1981 protects only two “enumerated rights”—the right “to

make . . contracts’ and ‘the same right . . to en-

force contracts.’” Id. at 176 (quoting Section 1981). “Where

an alleged act of discrimination does not involve the

impairment of one of these specific rights,” the Patterson

Court instructed, “§ 1981 provides no relief.” Ibid.

In 1991, in response to Patterson, Congress amended Sec-

tion 1981 and prohibited discrimination with respect to “the

enjoyment of all benefits, privileges, terms, and conditions of

the contractual relationship.” Civil Rights Act of 1991 (1991

Act), Pub. L. No. 102-166, § 101, 105 Stat. 1071 (42 U.S.C.

1981(b)); see § 3(4), 105 Stat. 1071 (Congress’s objective was

to “expand[] the scope of relevant civil rights statutes in

order to provide adequate protection to victims of dis-

crimination”); Rivers v. Roadway Express, Inc., 511 U.S.

298, 305-308 n.6 (1994).' The 1991 Act thus made actionable

the very type of employment discrimination that this Court

1 Section 101 of the 1991 Act amended Section 1981 by redesignating

the existing text of the statute as Section 1981(a) and adding subsections

(b) and (c). § 101, 105 Stat. 1071. Subsection (b) states: “For purposes of

this section, the term ‘make and enforce contracts’ includes the making,

performance, modification, and termination of contracts, and the enjoy-

ment of all benefits, privileges, terms, and conditions of the contractual

relationship.” § 101, 105 Stat. 1072. The text of Section 1981, as amended,

is set forth in the appendix to this brief.

in Patterson held was “not actionable under § 1981.” 491

U.S. at 171, 179, 189.

In Rivers, 511 U.S. at 300, this Court held that Section 101

of the 1991 Act—the part of the Act at issue in this case—

does not apply to Section 1981 actions “that arose before [the

1991 Act] was enacted.” The Court explained that, because

Section 101 “creates liabilities that had no legal existence

before the Act was passed,” it does not apply to “preenact-

ment conduct” given the absence of any indication that Con-

gress intended it to apply retroactively. Id. at 313. The

Court in Rivers thus affirmed the dismissal of plaintiffs’

claims under Section 1981 for discriminatory discharge,

which had accrued before 1991 and were not actionable un-

der Section 1981, as construed in Patterson. Id. at 301-302.

b. Section 1981 does not set forth a statute of limitations.

Following the choice-of-law analysis established by 42 U.S.C.

1988(a), however, courts in Section 1981 actions traditionally

have borrowed the limitations period used by the forum

state for personal injury actions. Under Section 1988(a),

courts look to federal law and, if there is no suitable federal

rule, apply the law of the forum state to the extent that

doing so would not be inconsistent with federal law. See

Wilson v. Garcia, 471 U.S. 261, 267 (1985). The state

limitation periods that have been applied in Section 1981

actions vary from one State to the next, but generally range

from two to six years. See note 8, infra.

e. On December 1, 1990, Congress enacted a new, catch-

all statute of limitations for federal actions. Federal Courts

Study Committee Implementation Act of 1990, Pub. L. No.

101-650, Tit. III, § 313(a), 104 Stat. 5114. It states that,

“{e]xcept as otherwise provided by law, a civil action arising

under an Act of Congress enacted after the date of the

enactment of this section may not be commenced later than

1

4 years after the cause of action accrues.” 28 U.S.C. 1658(a).”

The statute was an outgrowth of the 1990 report of a com-

mittee appointed by the Chief Justice to propose long-range

solutions to problems stemming from the increased size and

complexity of the case load in federal courts. See Report of

the Federal Courts Study Committee (1990).

2. Petitioners are African Americans who are former

employees of respondent’s Chicago manufacturing division

and certain other divisions. In November 1996, they brought

this class action alleging, inter alia, violation of their rights

under Section 1981, as amended in 1991. J.A. 9-22. Peti-

tioners allege discriminatory termination and refusal to

transfer in connection with the closing of the Chicago divi-

sion in July 1994, and maintenance of a racially hostile work

environment. J.A. 18-19. Respondent moved for partial

summary judgment on the ground that petitioners’ Section

1981 claims are time-barred because they were brought

more than two years after they accrued. Respondent ex-

plained that, under prior Seventh Circuit precedent, the

statute of limitations for Section 1981 actions in Illinois is the

two-year period established by state law for personal injury

actions. Petitioners responded that their claims are timely

because they are governed by the four-year period estab-

lished by Section 1658(a). Pet. App. 4a-6a.

The district court held that Section 1658 governs the

claims at issue. Pet. App. 28a-40a. The court read Section

1658 to mean that “whenever Congress, after December

1990, passes legislation that creates a new cause of action,

the catch-all statute of limitations applies to that cause of

2 In 2002, Congress amended Section 1658 to add a separate provision

(subsection (b)) specifying the statute of limitations for certain securities

law claims. Act of July 30, 2002, Pub. L. No. 107-204, § 804(a), 116 Stat.

801. The original catch-all provision of the 1990 Act was left unchanged

but is now set forth in Section 1658(a).

— eee

~ — ae —

action.“ Id. at 37a. Accordingly, the court reasoned, “claims

that under Patterson could be brought under the pre-1991

version of § 1981 clearly arise under an Act of Congress that

was enacted prior to § 1658’s enactment date,” while

“{c}laims that Patterson said could not be brought under the

pre-1991 version of § 1981, but which can be made only by

virtue of § 1981(b), just as clearly arise under the Civil

Rights Act of 1991, an Act of Congress enacted after

§ 1658.” Id. at 37a-38a. Applying that understanding, the

court held that petitioners’ Section 1981 claims “arise under

the 1991 Act, see Patterson, 491 U.S. at 176-77, and are

therefore governed by § 1658[].” Pet. App. 40a. The district

court certified its ruling for an interlocutory appeal pursuant

to 28 U.S.C. 1292(b). Pet. App. 12a.

3. The Seventh Circuit reversed. Pet. App. 3a-27a. It

concluded that Section 1658(a)’s reference to “an Act of

Congress enacted” does not encompass an amendment to an

existing statute. Id. at 18a-19a. Rather, the court explained,

“when Congress amends a preexisting statute, it does not

create a ‘new act,’ and claims arising under the statute as

amended continue to arise under the preexisting statute.”

Id. at 20a. As a result, in the court’s view, Section 1658(a)

“applies only when an act of Congress creates a wholly new

cause of action, one that does not depend on the continued

existence of a statutory cause of action previously enacted

and kept in force by the amendment.” Id. at 22a.

Applying that construction, the court of appeals held that

the Section 1981 claims at issue are not governed by Section

1658(a). The court acknowledged that “the type of claims on

which [petitioners] seek relief did not exist post-Patterson

and pre-§ 1981(b).” Pet. App. 22a. But although petitioners’

claims “depend on” Section 1981(b), the court concluded that

“the cause of action for post-formation conduct ‘arises under’

§ 1981(a),” i. e., the provision at issue in Patterson. Id. at 24a.

In so holding, the court emphasized that “Congress chose to

overrule Patterson not by creating an entirely new statutory

provision,” but by supplying “a more precise definition” of

the scope of Section 1981. Jd. at 25a. In addition, the court

found it “highly significant” that a committee report accom-

panying the 1991 Act referred to the fact that courts have

historically borrowed state statute of limitations in adju-

icating Section 1981 claims. Ibid.

SUMMARY OF ARGUMENT

The four-year statute of limitations established by 28

U.S.C. 1658(a) governs a claim for racial discrimination relat-

ing to the terms or conditions of employment in violation of

42 U.S.C. 1981—a claim that was not actionable until Con-

gress’s enactment of the Civil Rights Act of 1991.

A. By its terms, Section 1658(a)’s catch-all limitations

period applies to any “civil action arising under an Act of

Congress enacted after [December 1, 1990],” unless it is

“otherwise provided by law.” The pivotal issue in applying

Section 1658(a) in this case is the meaning of “arising under.”

In common parlance, “arise” means to spring up or come into

being. In addition, the term “arising under” has a well-

known legal meaning in the context of jurisdictional statutes

contained in the same title of the United States Code as

Section 1658(a). In construing those statutes, this Court has

consistently held that a claim “arises under” federal law

either if federal law creates the cause of action or the com-

plainant’s right to relief necessarily depends on federal law.

B. A Section 1981 claim for racial discrimination relating

to the terms or conditions of employment “arises under” the

1991 Act—and thus is subject to Section 1658(a)—under

both the dictionary definition of “arise” and the term’s com-

mon legal meaning. In Patterson v. McLean Credit Union,

491 U.S. 164 (1989), this Court held “that racial harassment

relating to the conditions of employment is not actionable

under § 1981.” Jd. at 171 (emphasis added). In Rivers v.

— —

Roadway Express, Inc., 511 U.S. 298 (1994), by contrast, the

Court recognized that the same discrimination is actionable

by virtue of the 1991 Act, which, inter alia, expanded

Section 1981 to protect “the enjoyment of all benefits, privi-

leges, terms, and conditions of the contractual relationship”

(42 U.S.C. 1981(b)). The claims at issue in this case therefore

necessarily came into being and became actionable under the

1991 Act because they “had no legal existence before [the

1991] Act was passed.” Rivers, 511 U.S. at 313.

The fact that a Section 1981 claim alleging discrimination

relating to the terms or conditions of employment also de-

pends on Section 1981(a)—the part of the statute at issue in

Patterson—does not alter the conclusion that such a claim

arises under the 1991 Act and thus triggers Section 1658(a).

Section 1658(a) does not say that a claim must arise solely

under an Act of Congress passed after December 1, 1990. In

addition, in the jurisdiction context, this Court has long

recognized that a claim may arise under federal law even if it

is based only partly on federal law, as long as federal law

creates the cause of action or supplies an essential element

for obtaining relief. With respect to the Section 1981 claims

at issue in this case, the 1991 Act both creates a cause of

action and supplies an essential element of the cause of

action, since before the 1991 Act those claims were “not

actionable” (Patterson, 491 U.S. at 179) at all.

C. None of the secondary considerations relied upon by

the court of appeals provides any basis for overriding the

result clearly called for by the text of Section 1658(a). Ifa

claim arises under an Act of Congress passed after Decem-

ber 1, 1990, then it is immaterial for purposes of Section

1658(a) whether such an Act amended an existing statute or

_ created a stand-alone cause of action. Just as is true for

purposes of the Court’s retroactivity analysis, the focus must

be on the substantive effect of the Act, not on whether the

Act creates a new section of the United States Code, amends

an existing provision, or even simply “operates as a gloss on

[existing] terms.” Rivers, 511 U.S. at 304-305; see Landgraf

v. USI Film Prods., 511 U.S. 244, 280 (1994).

The court of appeals also erred in concluding that its con-

structon was necessary in light of legislators’ goal—ex-

pressed in a committee report—to avoid disruption of liti-

gants’ settled expectations. Congress addressed that con-

cern by making Section 1658(a)’s default limitations period

prospective only, i. e., by limiting it to claims arising under an

Act of Congress passed after December 1, 1990. Moreover,

as Rivers underscores in the context of the very type of

claims at issue in this case, Acts of Congress that trigger

Section 1658(a) by creating new causes of action inevitably

will fall within Landgraf’s presumption against retroactive

application, and so any retroactive effect will be expressly

contemplated by Congress.

Congress presumably weighed the policy concerns ex-

pressed by the court of appeals concerning the administrabil-

ity of Section 1658(a)’s arising-under rule and concluded that

such concerns were outweighed by the significant federal in-

terest served by creating a uniform (albeit prospective)

federal limitations period for federal claims lacking such a

period. Moreover, there is no reason to conclude that courts

have encountered, or will encounter, any undue difficulty in

determining which Section 1981 claims arise under the 1991

Act, and thus trigger Section 1658(a), and which Section 1981

claims do not. Accordingly, the court of appeals erred in

holding that the claims at issue are governed by Illinois’s

two-year limitations rule for personal injury actions, instead

of the uniform federal rule established by Section 1658(a).

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8

ARGUMENT

THE UNIFORM STATUTE OF LIMITATIONS ESTAB-

LISHED BY 28 U.S.C. 1658(a) GOVERNS ANY CLAIM

FOR RACIAL DISCRIMINATION RELATING TO THE

TERMS OR CONDITIONS OF EMPLOYMENT IN VIO-

LATION OF 42 U.S.C. 1981 THAT WAS NOT ACTION-

ABLE UNTIL THE CIVIL RIGHTS ACT OF 1991

A. Section 1658(a) Applies To Any Claim Or Cause Of

Action That Was Created By Or Necessarily Depends

On An Act Of Congress Enacted After December 1,

1990

1. This case is governed by elementary principles of

statutory construction. First, Congress “says in a statute

what it means and means in a statute what it says there.”

Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 254 (1992).

Second, the Court “give[s] the words of a statute their ordi-

nary, contemporary, common meaning, absent an indication

Congress intended them to bear some different import.”

Williams v. Taylor, 529 U.S. 420, 431 (2000) (internal quota-

tion marks omitted). Third, when Congress uses legal terms

of art, “it presumably knows and adopts the cluster of ideas

that were attached to each borrowed word in the body of

learning from which it was taken and the meaning its use

will convey to the judicial mind unless otherwise instructed.”

Morissette v. United States, 342 U.S. 246, 263 (1952); accord

Beck v. Prupis, 529 U.S. 494, 500-501 (2000). And fourth,

when a “statute’s language is plain, ‘the sole function of the

courts is to enforce it according to its terms.“ United States

v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989); accord

Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002).

2. Section 1658(a) says that, “[e]xcept as otherwise pro-

vided by law, a civil action arising under an Act of Congress

enacted after the date of the enactment of this section [i.e.,

after December 1, 1990] may not be commenced later than 4

10

years after the cause of action accrues.” 28 U.S.C. 1658(a).

As Judge Alito explained in his dissenting opinion in Zubi v.

AT&T Corp,, 219 F.3d 220, 227 (3d Cir. 2000), the application

of Section 1658(a) to the type of claims at issue in this case

turns on the meaning of “three terms—‘action,’ ‘Act of Con-

gress,’ and ‘arising under’—each of which has a commonly

understood legal meaning.”

a. A “civil action” is a legal demand instituted in a court

to enforce a right. See Black’s Law Dictionary 26 (5th ed.

1979) (“Action” means “{tJhe legal and formal demand of

one’s right from another person or party made and insisted

on in a court of justice.”); William C. Anderson, A Dictionary

of Law 26 (1996) (“Civil action” seeks to Arlecoverſ] a pri-

vate right or compensation for deprivation thereof.”);

Frederic J. Stimson, Glossary of Technical Terms, Phrases,

and Maxims of the Common Law 7 (1881) (“Action” means

“(t}he legal demand of one’s right”; “[clivil action” is an

action “to enforce a private right.”). As the Tenth Circuit

stated, “there is no question that ‘civil action’ as used in

§ 1658 means ‘claim’ or ‘cause of action.“ Harris v. Allstate

Ins. Co., 300 F.3d 1183, 1190 (10th Cir. 2002).

b. An “Act of Congress” is a law enacted in accordance

with the procedures set forth in Article 1, Section 7 of the

Constitution. See INS v. Chadha, 462 U.S. 919, 945-951

(1983). JAlll Acts of Congress” are required to have an en-

acting clause” that states: “Be it enacted by the Senate and

House of Representatives of the United States of America in

Congress assembled.” 1 U.S.C. 101. Acts of Congress are

published in theUnited States Statutes at Large in the order

in which they were enacted by each session of Congress and

the Statutes at Large thus constitutes “legal evidence of

laws.” 1 U.S.C. 112.

e. In common parlance, “arise” means It lo come into

being; originate.” American Heritage Dictionary 99 (3d ed.

1992); see Oxford English Dictionary 445 (1933) (“Arise”

11

means It lo spring up, come above ground, into the world,

into existence”). The term “arising under” also has a settled

legal meaning in the jurisdiction context, the most familiar

context where it is used, of which Congress presumably is

aware. See Beck, 529 U.S. at 500-501; see also Evans v.

United States, 504 U.S. 255, 260 n.3 (1992) (If a word is

obviously transplanted from another legal source, whether

the common law or other legislation, it brings the old soil

with it.”) (quoting Felix Frankfurter, Some Reflections on

the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)).

Article III, Section 2 of the Constitution states that “(t]he

judicial Power shall extend to all Cases, in Law and Equity,

arising under this Constitution, the Laws of the United

States, and Treaties.” As this Court observed in Verlinden

B. V. v. Central Bank, 461 U.S. 480, 492 (1983), At he control-

ling decision on the scope of Art. III ‘arising under’ juris-

diction is Chief Justice Marshall's opinion for the Court in

Osborn v. Bank of United States, [22 U.S. (9 Wheat.)] 738

(1824).” In Osborn, Chief Justice Marshall explained that

under Article III, a case arises under federal law whenever

federal law “forms an ingredient of the original cause,” even

if “other questions of fact or of law may be involved in it.” 22

U.S. (9 Wheat.) at 823; see also Franchise Tax Bd. v.

Laborers Vacation Trust, 463 U.S. 1, 8-9 n.8 (1983).

More to the point, Congress itself has used the term “aris-

ing under” to establish the parameters of federal subject

matter jurisdiction. See, e.g., 28 U.S.C. 1331, 1338(a). In

addition, Congress’s use of the term “arising under” in the

jurisdictional provisions of Title 28 of the United States

Code—which governs the “Judiciary and Judicial Procedure”

—tracks the way that Congress used the term in Section

1658(a) of Title 28. Compare 28 U.S.C. 1658(a) with 28

U.S.C. 1331 (“The district courts shall have original

jurisdiction of all civil actions arising under the Constitution,

laws, or treaties of the United States.”); 28 U.S.C. 1338(a)

12

(“The district courts shall have original jurisdiction of any

civil action arising under any Act of Congress relating to

patents, plant variety protection, copyrights and

trademarks.”). The natural conclusion is that Congress

intended Section 1658(a)’s use of “arising under” to have a

similar meaning as Congress’s use of that term in the well-

known statutory jurisdiction provisions of the same title of

the Code.

As this Court has explained, “(t]he most familiar definition

of the statutory ‘arising under’ limitation is Justice Holmes’

statement, ‘A suit arises under the law that creates the

cause of action. Laborers Vacation Trust, 463 U.S. at 8-9

(quoting American Well Works Co. v. Layne & Bowler Co.,

241 U.S. 257, 260 (1916)). But the Court also has instructed

that “arising under” is an inclusive term and “that a case

may arise under federal law ‘where the vindication of a right

under state law necessarily turned on some construction of

federal law.” Merrell Dow Pharm., Inc. v. Thompson, 478

U.S. 804, 808 (1986) (citing Laborers Vacation Trust, 463

U.S. at 9); see also Christianson v. Colt Indus. Operating

Corp., 486 U.S. 800, 808 (1988) (a case may “arise under” fed-

eral law if “federal law is a necessary element of [a claim]”);

Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 199

(1921) (The “general rule” is that federal-question jurisdic-

tion is present when “right to relief depends upon the con-

struction or application of the Constitution or laws of the

United States.“ (emphasis added).

3 In Merrell Dow, the Court held that “the presence of a federal issue

in a state cause of action” is not sufficient to make the action one “arising

under” federal law for purposes of Section 1331, when it is clear that Con-

gress intended “no federal private cause of action” for violation of the

federal law. 478 U.S. at 811-812; see id. at 812 (“The significance of the

necessary assumption that there is no federal private cause of action

* * * cannot be overstated.”). There is no question that the rights at

issue in this case are privately enforceable under federal law.

13

In Holmes Group, Inc. v. Vornado Air Circulation

Systems, Inc., 535 U.S. 826, 830 (2002), the Court observed in

the context of construing 28 U.S.C. 1338(a)’s “arising under”

language, that a claim “arises under” patent law if either (1)

“federal patent law creates the cause of action,” or (2) “the

plaintiff’s right to relief necessarily depends on resolution of

a substantial question of federal patent law.” The Court

derived that formulation from the “same test” used “to

determine whether a case arises * under § 1331,”

because, the Court stated, the “(linguistic consistency” of

Section 1338(a) and Section 1331 “requires” that result.

Ibid.; see Christianson, 486 U.S. at 808-809 (adopting same

interpretation). “Linguistic consistency” likewise calls for a

similar understanding of the term in interpreting the

“arising under” language of Section 1658(a).*

‘ The term “arising under” is also found in other parts of the United

States Code. For example, in Heckler v. Ringer, 466 U.S. 602 (1984), this

Court recognized that 42 U.S.C. 405(h) bars a federal court from exercis-

ing federal question jurisdiction to hear “all elaimls] arising under’ the

Medicare Act.” 466 U.S. at 615 (quoting 42 U.S.C. 405(h)). The Court

further explained that it has construed Section 405(h)’s “‘claim arising

under’ language quite broadly to include any claims in which both the

standing and the substantive basis for the presentation’ of the claims is

the [Medicare Act].“ bid. (quoting Weinberger v. Salfi, 422 U.S. 749, 760-

761 (1975)); see also Your Home Visiting Nurse Servs., Inc. v. Shalala, 525

U.S. 449, 456 (1999) (applying same construction of Section 405(h)).

Although it may be somewhat broader, Heckler’s construction of Con-

gress’s use of the term “arising under” in Title 42 of the Code is generally

consistent with the construction that this Court has given to the term in

the jurisdictional provisions of Title 28 of the Code. To be clear, however,

in light of the placement of Section 1658(a) in Title 28 of the Code and the

fact that the use of “arising under” is much more well-known in tha juris-

dictional context, in our view the most natural reading of Section 1658(a) is

that Congress intended to adopt the meaning of “arising under” used in

the statutory jurisdiction context.

14

B. Section 1658(a) Governs A Demand Under Section

1981 Based On Racial Discrimination That Was Not

Actionable Until Congress Enacted The Civil Rights

Act Of 1991

Section 1658(a)’s four-year statute of limitations applies to

a claim for racial discrimination relating to the terms or

conditions of employment—a claim that this Court in Patter-

son held is “not actionable under § 1981,” 491 U.S. at 171,

179, 189, and that sprang into existence with enactment of

the 1991 Act.

1. Section 1658(a)’s terms lead directly to the conclusion

that its four-year limitations period applies to petitioners’

Section 1981 claims. ongress has not “otherwise provided”

(28 U.S.C. 1658(a)) a statute of limitations for Section 1981

claims, and this case involves a “civil action,” (28 U.S.C.

1658(a)), or “legal and formal demand” (Black’s Law Diction-

ary, supra, at 26) for enforcement of a right that did not

exist before December 1, 1990, but rather was created by an

Act of Congress—the 1991 Act—that was passed in accor-

dance with Article I, Section 7 of the Constitution, contains

an enacting clause, and was signed by the President on

November 21, 1991. 1991 Act, 105 Stat. 1071. Moreover, as

explained next, petitioners’ claims clearly “aris[e] under” (28

U.S.C. 1658(a)) the 1991 Act, from which they sprang to life.

2. Petitioners’ Section 1981 claims “arise under” the 1991

Act under both the literal and legal meaning of that term.

As this Court’s decisions in Patterson and Rivers under-

score, a cause of action under Section 1981 for racial discrimi-

nation relating to the terms or conditions of employment

literally did not “come into being” (American Heritage

Dictionary, supra, at 99) or “spring up” (Oxford English

Dictionary, supra, at 445) until the 1991 Act. In addition, a

claim under Section 1981 for discrimination relating to the

terms or conditions of employment “arises under” the 1991

Act under the most common meaning that this Court has

——

15

ascribed to that term in the statutory context: the cause of

action for such discrimination was created by the 1991 Act

and, at a minimum, is necessarily dependent on that Act.

a. The 1991 Act clearly gave rise to causes of action that

had never existed under Section 1981. As discussed, Patter-

son held that “racial harassment relating to the conditions of

employment is not actionable under § 1981.” 491 U.S. at 171.

The term “actionable” denotes It hat for which an action

may be maintained; opposed to non-actionable.” A Diction-

ary of Law, supra, at 26.° Patterson thus definitively estab-

lishes that—before 1991—Section 1981 did not supply a

cause of action for discriminatory conduct relating to the

terms or conditions of employment. And, as this Court em-

phasized in Rivers, 511 U.S. at 312-313 & n.12, that is “an

authoritative statement” of the action that had “always”

existed under Section 1981.

The 1991 Act originated causes of action that “had no legal

existence before thlat] Act was passed.” Rivers, 511 U.S. at

313. As discussed, the Act expanded Section 1981 to pro-

scribe racial discrimination relating to “the enjoyment of all

benefits, privileges, terms, and conditions of the contractual

relationship.” 42 U.S.C. 1981(b); see Rivers, 511 U.S. at 303

(The 1991 Act “enlarged the category of conduct that is sub-

ject to § 1981 liability”). By enlarging the Imlatter for

which action may be maintained” under Section 1981, and

“(t]he right[s] which a party has to institute a judicial pro-

ceeding” under Section 1981, Black’s Law Dictionary, supra,

at 201, the 1991 Act created new causes of action under Sec-

tion 1981 for relief from discrimination. See Harris, 300 F.3d

® See also Black's Law Dictionary, supra, at 27 (“Actionable” means

It hat for which an action will lie, furnishing legal ground for an action.

(See Cause of action * ).”); id. at 201 (“Cause of action” is I matter

for which action may be maiut ained“; Aulnlawful violation or invasion of

right”; It he right which a purty has to institute a judicial proceeding.”).

16

* * *

at 1190 (“when Congress enacted § 1981(b), it

undeniably created new causes of action.“) Zubi, 219 F.3d at

230 (Alito, J., dissenting) (IIln any realie tte sense, Section

101 of the 1991 Act ‘create[d] the cause o! action’ for racially

discriminatory termination of employment.”), note 5, supra.

Petitioners in this case allege that they were subject to

racially discriminatory decisions concerning the termination

and transfer of employment and a discriminatory work envi-

ronment. J.A. 18-19. Those claims were “not actionable”

under Section 1981 before the 1991 Act because, Patterson

held, the rights guaranteed by Section 1981 did “not extend

* * * to conduct by the employer after the contract relation

has been established, including * * * imposition of dis-

criminatory working conditions.” 491 U.S. at 177. Indeed,

-Patterson itself involved a hostile work environment claim,

id. at 178-179, and Rivers involved a discriminatory dis-

charge claim, 511 U.S. at 301. This Court held that those

claims were not actionable under Section 1981 before the

1991 Act. The 1991 Act, however, created causes of action

for racial discrimination with respect to the terms and condi-

tions of the contractual relationship, see 42 U.S.C. 1981(b);

Rivers, 511 U.S. at 303, and thus gave life to the type of

discrimination claims brought by petitioners here.

b. That Congress in the 1991 Act chose to expand an

existing cause of action, rather than legislate on a tabula

rasa, does not alter the conclusion that the claims at issue

“arise under” the 1991 Act. At a minimum, Section 1981

claims alleging discrimination in the terms and conditions of

employment “necessarily depend[] on” (Holmes Group, 535

U.S. at 830) the 1991 Act. The “important new legal obliga-

tions” (Rivers, 511 U.S. at 304) created by the 1991 Act

indisputably constitute a necessary element of the Section

1981 claims at issue, because—Patterson establishes—before

the 1991 Act those claims were not actionable at all. See

D

— —— ee — —

17

Christianson, 486 U.S. at 808 (a case may arise under“

federal law if “federal law is a necessary element of [a

claim]”) (quoting Laborers Vacation Trust, 463 U.S. at 13).

Indeed, even the court of appeals recognized that “post-

formation discriminat{ion] claims depend on * * * [Section

101] in the sense that the definitional language of that sub-

section makes clear that ‘make and enforce’ includes post-

formation conduct.” Pet. App. 24a (emphasis added). That

dependency alone compels the conclusion that the claims at

issue “arise under” the 1991 Act under the alternative defini-

tion of “arising under” that this Court has used in the statu-

tory jurisdiction context. See p. 12, supra.

Furthermore, Section 1658(a) does not specify that a claim

must exclusively arise under an Act of Congress enacted

after December 1, 1990, only that it must “aris[e] under”

such an Act. Nor would such an interpretation be consistent

with the way that this Court has used the term “arising

under” in the statutory jurisdiction context where that term

is inclusive. Indeed, this Court has often recognized that a

claim may arise under federal law even though it is based on

a state cause of action or involves both state and federal law.

See Laborers Vacation Trust, 463 U.S. at 9 (“We have often

held that a case ‘arose under’ federal law where the vindica-

tion of a right under state law necessarily turned on some

construction of federal law.“) (citing cases); id. at 13. As a

result, to the extent that petitioners’ Section 1981 claims

depend on Section 1981(a)—as well as Section 1981(b)—that

in no way undermines the conclusion that those claims arise

under the 1991 Act. Cf. Weinberger v. Salfi, 422 U.S. 749,

760-761 (1975) (“It would, of course, be fruitless to contend

that appellees’ claim is one which does not arise under the

Constitution * * * . But it is just as fruitless to argue that

this action does not also arise under the Social Security

Act.”) (applying 42 U.S.C. 405(h), discussed note 4, supra).

18

C. The Court Of Appeals Erred In Concluding That The

Uniform Limitations Period Supplied By Section

1658(a) Does Not Apply To The Section 1981 Claims

At Issue

The court of appeals grounded its contrary conclusion

largely on policy and other secondary considerations. But

none of the concerns identified by the court provides any

reason to override the result clearly called for by the text of

Section 1658(a).

1. The court of appeals reasoned that the manner in

which Congress responded to Patterson barred application

of Section 1658(a) to the claims at issue. The court empha-

sized that “Congress chose to overrule Patterson not by

creating an entirely new statutory provision,” but instead by

“merely supplying] a more precise definition to one of the

rights already guaranteed by § 1981.” Pet. App. 25a; see id.

at 24a (“[I]t is ‘only when Congress establishes a new cause

of action without reference to preexisting law that § 1658

applies.’”). That analysis is flawed.

Most fundamentally, ne court of appeals’ reasoning is

contradicted by the plain terms of Section 1658(a). Section

1658(a) is triggered when a claim “aris[es] under an Act of

Congress enacted after [December 1, 1990].” The fact that

an Act of Congress creates new rights by amending an

existing statute, rather than by creating “a wholly new cause

of action” without reference to another statute (Pet. App.

22a), is itself of no moment under Section 1658(a). See

Harris, 300 F.3d at 1189-1190 (“[E]very Act of Congress,

whether it reflects a never-before considered subject or

amends a previously existing statute, is ‘enacted’” and thus

potentially may trigger Section 1658(a).).

Under the decision below, however, only a small fraction

of Acts of Congress enacted after December 1, 1990, could

ever trigger Section 1658(a), i. e., the relatively few statutes

that create an entirely free-standing cause of action. The

‘

2 —— —

19

decision thus severely limits the application of Section

1658(a) on the basis of a criterion that has no footing in the

text of that provision. Section 1658(a) makes clear that the

proper focus is on the “Act of Congress enacted after

[December 1, 1990],” not on how the statutory change is

codified. Here, although the court of appeals recognized that

petitioners’ claims “depend on” (Pet. App. 24a) Section 101 of

the 1991 Act, it found Section 1658(a) inapplicable simply

because Section 101 amended an existing code provision.

The key question in determining whether Section 1658(a)

applies is not whether an Act of Congress amends an exist-

ing statute or creates a free-standing cause of action, but

instead whether the underlying claim arises under an Act of

Congress enacted after December 1, 1990. Under the most

common meaning of the phrase “arising under” used by this

Court in the statutory context, the Section 1981 claims at

issue here readily arise under an Act of Congress enacted

after December 1, 1990, even though that Act amends an

existing statute instead of creating an independent cause of

action proscribing the same conduct. See Part B, supra;

Harris, 300 F.3d at 1190 (“When Congress enacted § 1981(b),

it * * * undeniably created new causes of action, whether

or not that is how it chose to label what it had done.”).

So too, for example, if Congress amended a statute that

prohibited discrimination on the basis of gender (and did not

specify a limitations period) to prohibit discrimination on the

basis of national origin as well, a claim for national origin

discrimination would arise under the new Act, and thus be

governed by Section 1658(a). Conversely, if the amendment

simply changed the applicable burden of proof, a subsequent

claim under the statute would not arise under the new Act,

or trigger Section 1658(a). An Act that changes the burden

of proof or procedures governing a claim typically does not

create a new right to maintain an action. In addition,

although the new burden of proof might decide the success

20

or failure of the claim on the merits, the plaintiffs right to

maintain the action would not necessarily depend on the new

burden or procedure specified by Congress.

Nor is it significant, as the court of appeals believed, that

the 1991 Act “merely supplied a more precise definition to

one of the rights already guaranteed by § 1981.” Pet. App.

25a. As this Court explained in Rivers, Jalltering statutory

definitions, or adding new definitions of terms previously

undefined, is a common way of amending statutes.” 511 U.S.

at 308. Congress could have created a new cause of action

for post-formation discrimination which Patterson held not

actionable by fashioning a stand-alone statutory section,

adding a wholly independent subsection to Section 1981, or,

as it did, expanding the definition of the conduct covered by

the existing provision. The substantive effect—z.e., the

creation of new rights of action and corresponding liabilities

—would be exactly the same under each alternative. Con-

gress’s concern presumably is the substantive effect of its

Acts, not the particular manner in which they are reflected

in the United States Code. Indeed, to a degree, the Office of

Law Revision Counsel, and not Congress as a deliberative

body, ultimately chooses the form that a law takes when it

makes its way into the Code. See 2 U.S.C. 285b; see also

North Dakota v. United States, 460 U.S. 300, 311 n.13 (1983);

United States v. Welden, 377 U.S. 95, 98-99 n.4 (1964);

Turner v. Glickman, 207 F.3d 419, 428-429 (7th Cir. 2000).

The salient point is that, in this instance, the new defini-

tion created by Congress “create[d] liabilities that had no

legal existence before the Act was passed.” Rivers, 511 U.S.

at 313. Likewise, this Court rejected the plaintiffs’ argu-

ment in Rivers that the fact that Ҥ 101 operates as a gloss

on the terms ‘make and enforce contracts,’” altered the con-

clusion that “the important new legal obligations § 101 im-

poses bring it within the class of laws that are presumptively

prospective.” Id. at 304-305. So too, the fact that Congress

21

chose to expand the definition of the rights protected by

Section 1981 does not alter the fact that in doing so it created

significant new causes of action under Section 1981.

2. The court of appeals pointed to the fact that, in enact-

ing Section 1658(a), “Congress * * * was concerned with

disrupting litigants’ settled expectations.” Pet. App. 21a; see

id. at 23a. In particular, the court relied on a statement in a

committee report accompanying Section 1658(a), explaining

the committee’s decision to reject a proposal “to provide a

fallback statute of limitations for previously enacted

legislation lacking a limitations period” and instead to limit

Section 1658(a) to prospective application. Jd. at 2la-22a

(emphasis added) (quoting H.R. Rep. No. 734, 101st Cong.,

2d Sess. 24 (1990)). The committee’s statement, however,

does not support the court of appeals’ interpretation in this

case because recognizing that Section 1658(a) applies to

claims arising under the 1991 Act does not disrupt the

“settled expectations” of any litigants with respect to

“previously enacted legislation.” Ibid.

Congress squarely addressed the concern expressed in the

committee report by making Section 1658(a) prospective, i.e.,

by limiting Section 1658(a)’s four-year limitation period to

claims “arising under an Act of Congress enacted after the

date of the enactment of [Section 1658].” 28 U.S.C. 1658(a)

(emphasis added). Applying Section 1658(a) to a claim that

arises under the 1991 Act—which was enacted after Section

1658(a), and which Rivers held applies only prospectively—

in no way disrupts the “settled expectations” of parties. As

Judge Alito put it in Zubi, “[blefore the enactment of the

Civil Rights Act of 1991, no employer in New Jersey could

have had a settled expectation that an action for discrimina-

tory discharge brought under § 1981 would be subject to the

state’s two year statute of limitations for personal injury

actions, since prior to that time, § 1981 did not authorize such

an action at all. It was not until the 1991 Act that such an

22

action was possible, and by that point § 1658 had been en-

acted.” 219 F.3d at 231 (dissenting). Accordingly, after

enactment of Section 1658(a), the only reasonable expecta-

tion that an employer or employee could have had with

respect to the limitations period that applies to a claim

arising under the 1991 Act is that such a claim would be

governed by the four-year period in Section 1658(a).°

The court of appeals not only erred in focusing on Con-

gress’s objective of not disrupting expectations under “pre-

viously enacted legislation,” Pet. App. 21a, but it failed to

account for the important interests served by subjecting

federal claims to a uniform federal limitations period, as

opposed to a varying limitations period borrowed from the

law of the forum state. As Justice Scalia observed in North

Star Steel Co. v. Thomas, 515 U.S. 29 (1995), “a uniform

nationwide limitations period for a federal cause of action is

always significantly more appropriate” than a limitations

period that varies based on the law of the forum state. Id. at

37 (concurring in the judgment); see also Short v. Belleville

Shoe Mfg. Co., 908 F.2d 1385, 1393 (7th Cir. 1990) (Posner, J.,

concurring) (“express[ing] reservations about the principle

of ‘borrowing’ a period of limitations from one statute for use

with another“), cert. denied, 501 U.S. 1250 (1991).

6 Under the Landgraf-Rivers analysis, any Acts of Congress that

create new causes of action or liabilities, and thus trigger Section 1658(a)’s

“arising under” language, necessarily will presumptively apply only pro-

spectively. See Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994) (a

statute is presumed to have only a prospective effect if “it would impair

rights a party possessed when he acted, increase a party’s liability for past

conduct, or impose new duties with respect to transactions already c m-

pleted”). As a result, Congress’s own decision to apply Section 1658(a)’s

presumptive limitations period only prospectively combined with this

Court’s retroactivity jurisprudence fully addresses any concerns about

disrupting settled expectations.

23

The committee report cited by the court of appeals itself

acknowledges the problems posed by borrowing limitations

periods from state law for federal causes of action. As the

committee explained:

At present, the federal courts “borrow” the most analo-

gous state or federal law limitations period for federal

claims lacking limitations periods. This practice creates

a number of practical problems. * * * It obligates

judges and lawyers to determine the most analogous

state law claim; it imposes uncertainty on litigants; reli-

ance on varying state laws results in undesirable vari-

ance among the federal courts and disrupts the develop-

ment of federal doctrine on the suspension of limitation

periods.

H.R. Rep. No. 734, supra, at 24; see 136 Cong. Rec. 36,292

(1990) (“Borrowing, while defensible as a decisional approach

in the absence of legislation, appears to lack persuasive sup-

port as a matter of policy” and “results in undesirable vari-

ance among the federal courts.”) (statement reporting bill to

Senate). For similar reasons, the 1990 Report of the Federal

Courts Study Committee (at 93) leading to Section 1658(a),

urged Congress to establish uniform federal limitations

periods for federal causes of action as well as a catch-all,

federal limitations period for causes of action for which Con-

gress has not established a specific limitations period.”

7 An analysis prepared for the Workload Subcommitee of the Federal

Courts Study Committee focused on the problem posed by borrowing

state statutes of limitations for federal claims lacking a federal limitations

period and concluded that “there is little to be said in favor of the current

situation and there seems to be no identifiable support for continuing this

situation.” Memorandum from R. Marcus, Assoc. Reporter, to Workload

Subcomm. at 1 (Sept. 1, 1989), reprinted in 1 Federal Courts Study Com-

mittee, Working Papers and Subcomm. Reports App. (1990). In particu-

lar, the report emphasized that borrowing state limitations periods for

24

In North Star Steel Co., 515 U.S. at 34 & n.*, this Court

itself recognized that, whereas the expectation has been that

federal courts may borrow a limitations period from state

law when a federal statute does not establish a limitations

period, the expectation is -eversed for statutes passed

after December 1, 1990, the effective date of 28 U.S.C. § 1658

(1988 ed., Supp. V).” In focusing on Congress’s apparent in-

terest to avoid the disruption of litigants’ settled expecta-

tions under “previously enacted legislation,” H.R. Rep. No.

734, supra, at 24, the court of appeals overlooked Congress's

intent to ensure that Section 1658(a)’s limitations period

would apply on a prospective basis to any claims arising

under an Act of Congress enacted after December 1, 1990.

3. The court of appeals likewise disregarded the express

statutory preference established by 42 U.S.C. 1988(a) for

applying federal rules in adjudicating civil rights claims. As

this Court has explained, Section 1988(a) establishes a

“three-step process’ for determining the rules of decision

applicable to civil rights claims,” including claims under

Section 1981. Wilson, 471 U.S. at 267. The first step is to

look to “the laws of the United States, so far as such laws are

suitable to carry [the Civil Rights Acts] into effect.” 42

U.S.C. 1988(a). As this Court has observed, that “mandate

implies that resort to state law—the second step in the

process—should not be undertaken before principles of fed-

eral law are exhausted.” Wilson, 471 U.S. at 268. The third

step is to apply state law, but only “‘so far as the same is not

inconsistent with’ federal law.” Id. at 269 (quoting 42 U.S.C.

1988(a)). Section 1988(a) thus explicitly directs courts to

federal claims creates uncertainty for litigants, “makes outcomes very

different for federal claimants in different places, invites forum shopping,

and poses problems for joint resolution through class actions or related

measures.” Id. at 10.

—— ~~

25

give effect when feasible to “the predominance of the federal

interest” in adjudicating federal civil rights claims. Ibid.

Section 1658(a)’s own terms establish that it applies to the

civil rights claims at issue. But if there were any doubt

about whether such claims are governed by Section 1658(a)

or a state limitations period, then Section 1988(a) would

require that such doubt be resolved in favor of applying the

federal period supplied by Section 1658(a). Section 1658(a)’s

four-year period is clearly “suitable to carry [the Civil

Rights Acts] into effect.” 42 U.S.C. 1988(a). Four years

provides a uniform and fair limitations period for Section

1981 claims created by the 1991 Act. Indeed, limitations

periods that courts have borrowed from state law in Section

1981 actions range from two to six years.“ Therefore, this

case should be guided by Congress’s “first instruction” in

Section 1988—“that the law to be applied in adjudicating

civil rights claims shall be in ‘conformity with the laws of the

United States, so far as such laws are suitable“ Wilson, 471

U.S. at 268; see also id. at 270 n.21.

4. The court of appeals found it “highly significant” that a

committee report accompanying the 1991 Act stated that,

“{iJn the absence of an express limitations period in section

1981, courts applying the statute have looked to analogous

state statutes of limitations.” Pet. App. 25a-26a (quoting

H.R. Rep. No. 40, 102 Cong., Ist Sess. Pt. 1, at 63 (1991)).

That statement, however, does not shed any light on this

case. It comes from a section of a committee report that is

addressed to a provision of the 1991 Act other than Section

101 of that Act—the provision that gave rise to the claims at

8 See, eg, Pet. App. 26a-27a (two years); Goodman v. Lukens Steel

Co., 482 U.S. 656, 662 (1987) (two years); Gordon v. National Youth Work

Alliance, 675 F. 2d 356, 358 n.1 (D.C. Cir. 1982) (three years); Rowlett v.

Anheuser-Busch, Inc., 832 F. 2d 194, 198 (Ist Cir. 1987) (six years).

26

issue in this case. See H.R. Rep. No. 40, supra, at 62-63.

Moreover, the statement accurately describes the statute of

limitations that historically had been applied in Section 1981

actions. Ibid. But the committee’s historical observation

that “courts applying [Section 1981] have looked to

analogous state statutes of limitations” (id. at 63) does not

illuminate the committee’s views on whether a Section 1981

claim that were to arise—in the future—under a different

provision of the 1991 Act (Section 101) would be governed by

Section 1658(a).

In any event, a statement in a committee report cannot

override “the conclusion * * * directed by the text of [a

statute],” let alone a completely different statute passed by a

previous Congress. Circuit City Stores, Inc. v. Adams, 532

U.S. 105, 119-120 (2001); see United States v. Gonzalez, 520

U.S. 1, 6 (1997). This Court has “often observed” that the

views of a subsequent Congress, much less a subsequent

committee report, are “a hazardous basis for inferring the

intent of an earlier [Congress]. South Dakota v. Yankton

Sioux Tribe, 522 U.S. 329, 355 (1998). The committee report

touted by the court of appeals contains no reference to

Section 1658(a), and in all likelihood the staffer who drafted

that report did not have Section 1658(a) in mind when de-

scribing the historical practice of borrowing limitations

periods in Section 1981 actions. Indeed, the statement relied

on by the court of appeals appears to have been simply lifted

verbatim from earlier committee reports accompanying

precursor bills to the 1991 Act, which were prepared before

Section 1658(a) was even enacted into law in December 1990.

See H.R. Rep. No. 644, 101st Cong., 2d Sess. Pt. 1, at 37,

(1990) (describing same borrowing practice); S. Rep. No. 315,

101st Cong., 2d Sess. 29 (1990) (same).

5. The court of appeals speculated that applying Section

1658(a)’s statute of limitations to Section 1981 claims that

arise under the 1991 Act and a different limitations period to

—

27

Section 1981 claims that do not would be impractical. Pet.

App. 23a. Congress presumably weighed such policy con-

cerns in enacting Section 1658(a), and, in any event, such

concerns provide no basis for a court to override the result

directed by the text of that statute. See Holmes Group, 535

U.S. at 833 (“Our task here is not to determine what would

further Congress’s goal of ensuring patent-law uniformity,

but to determine what the words of the statute must fairly

be understood to mean.”); Zubi, 219 F.3d at 231 (Alito, J.,

dissenting) (In devising Section 1658(a), “Congress obviously

thought that interests other than clarity and ease of

application also had to be served to at least some degree.”).

That is particularly true because the final version of Section

1658(a) reflects a legislative compromise between interests

favoring a more expansive provision that applied to any

“previously enacted legislation lacking a limitations period”

and interests favoring a more limited prospective approach.

H.R. Rep. No. 734, supra, at 24.

At the same time, there is no reason to believe that

applying Section 1658(a)’s four-year statute of limitations to

Section 1981 claims arising under the 1991 Act will prove

unworkable or unfair. As the Tenth Circuit observed in

Harris, “courts routinely apply different statutes of limita-

tions to different claims, including different claims made

within a single lawsuit.” 300 F.3d at 1191. Indeed, many

lawsuits involving claims under Section 1981—including at

least initially this case, see Pet. App. 29a—also involve

claims under Title VII. Title VII specifies a different

limitations framework for claims than the one in Section

1658(a). See 42 U.S.C. 2000e-5(e)(1); National R.R. Pas-

senger Corp. v. Morgan, 536 U.S. 101, 109-110 (2002).

In addition, in the typical case, there is not likely to be

confusion as to whether a Section 1981 claim arises under the

1991 Act. As discussed, the 1991 Act and Patterson draw a

bright line based on whether a claim concerns “postforma-

29

28

tion conduct by the employer relating to the terms and CONCLUSION

conditions of continuing employment.” Patterson, 491 U.S. The judgment of the court of appeals should be reversed.

at 179; see Harris, 300 F.3d at 1192-1193 & n.1. Courts did

not find any undue difficulty in policing that line in assessing Respectfully submitted.

the lawfulness of pre-1991 conduct in light of Rivers’s THEODORE B. OLSON

holding that the 1991 Act is not retroactive. Moreover, in Solicitor General

many cases there may be no need for any inquiry into J. MICHAEL WIGGINS

whether a plaintiff's Section 1981 claims are governed by | Acting Assistant Attorney

Section 1658(a) or a limitations period borrowed from state | a,

law because the claims would be timely (or not) regardless of Deputy Solicitor General

which period applies, or because only one type of dis- GREGORY G. GARRE

crimination is alleged under Section 1981. Assistant to the Solicitor

2 «** | General

DENNIS J. DIMSEY

There is no dispute that the Section 1981 claims at issue in | LINDA F. THOME

this case were “not actionable under § 1981” (Patterson, 491 Attorneys

U.S. at 179) when Congress enacted Section 1658(a), and AUGUST 2003

that those claims are actionable today by virtue of the 1991

Act. The court of appeals’ ruling that Section 1658(a) does

not govern those claims is premised on the conclusion that

the claims do not arise under the 1991 Act, but instead arise )

under the very statute at issue in Patterson. See Pet. App. |

24a. That ruling defies common sense, contradicts Section |

1658(a)'s terms, and severely undercuts the applicability of

the uniform statute of limitations devised by Congress in

Section 1658(a) to redress one of the major problems

identified by the Federal Courts Study Committee.

APPENDIX

1. Section 1658 of Title 28 United States Code provides:

§ 1658 Time limitations on the commencement of

civil actions arising under Acts of Congress

(a) Except as otherwise provided by law, a civil action

arising under an Act of Congress enacted after the date of

the enactment of this section may not be commenced later

than 4 years after the cause of action accrues.

(b) Notwithstanding subsection (a), a private right of

action that involves a claim of fraud, deceit, manipulation, or

contrivance in contravention of a regulatory requirement

concerning the securities laws, as defined in section 3(a)(47)

of the Securities Exchange Act of 1934 (15 U.S.C. 78¢e(a)(47)),

may be brought not later than the earlier of—

(1) 2 years after the discovery of the facts con-

stituting the violation; or

(2) 5 years after such violation.

2. Section 1981 of Title 42 United States Code provides:

§ 1981 Equal rights under the law

(a) Statement of equal rights

All persons within the jurisdiction of the United States

shall have the same right in every State and Territory to

make and enforce contracts, to sue, be parties, give evidence,

and to the full and equal benefit of all laws and proceedings

for the security of persons and property as is enjoyed by

white citizens, and shall be subject to like punishment, pains,

penalties, taxes, licenses, and exactions of every kind, and to

no other.

(la)

2a

(b) “Make and enforce contracts” defined

For purposes of this section, the term “make and enforce

contracts” includes the making, performance, modification,

and termination of contracts, and the enjoyment of all

benefits, privileges, terms, and conditions of the contractual

relationship.

(c) Protection against impairment

The rights protected by this section are protected against

impairment by nongovernmental discrimination and impair-

ment under color of State law.