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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 369

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0637%3A09. Public record. Not legal advice.