# Opposition Brief — District of Columbia v. Brown

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 1073

## Text

ath: roe Supreme Court. US.
Rh : “ FILED
MAR 22 1985
IN THE SUPREME COURT OF THE UNITED STATES

ALEX4NDEF & STEVA
October Term 1984 CLERK

No. 84-1067

DISTRICT OF COLUMBIA,
Petitioner,
Ws
KENNETH M. BROWN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF IN OPPOSITION

ANNE SHERE WALLWORK

Miller, Cassidy, Larroca & Lewin
Suite 500

2555 M Street, N.W.

Washington, D.C. 20037

(202) 293-6400

Counsel of Record for Respondent

QUESTION PRESENTED

1. Whether the United States Court of Appeals for the
District of Columbia Circuit (en banc) erred in hclding that the
District of Columbia's six-months notice provision does not apply
to federal constitutional tort suits against the District because
that statute is not a local statute of limitations or a related
tolling or survival rule, but instead is a condition precedent on

the accrual of rights of action for damages against the District.

TABLE OF CONTENTS

Page

QUESTION DRT Os 6 0404S 6 6 ORS OR OAKE 65060 ON CERO OOS O40 O88 46 OR

REASONS FOR DENYING THE MER RAA SERA DAME MKAT OE ROAO ORES EERO

:

we

pe Se ek ee en ee ee are Eee er Eanes |

The Court Of Appeals' Decision Is
Consistent With The Overwhelming
Weight of The Case Ee a ge a ene en eee ea ee.

The Court Of Appeals Correctly

Followed Well-Established Principles

Of Federal Borrowing Doctrine In

Holding That Section 12-309 Does Not

Apply To Constitutional Damage Actions

ABGSingsE THE PLSETict Of COMMS As Fe conc ccccccsaceecl

a. The Decision Below Was Supported
By Established Principles Of
MOP EOCLNG BOCCTING ss bc ceca esesinicseceesaceed

Db. Yhe Absence Of A Notice Provision
Does Not Make The Law Governing
Constitutional Tort Suits Deficient..........9

C. Borrowing The District's Notice
Provision Would Be Inconsistent
With Policies Underlying
CONSCLEUEtONAl Tort SUlLees cccccaciesenciceeevclh3

Refusal To Borrow A Local Notice-Of-Claims
Provision For Use In Federal Constitutional

Tort Suits Does Not Seriously Hinder A
Municipality's Ability To Defend Itself

Against Unreasonable Litigation.....ceeeeeeeeeeeel5

COM UBT ON e466 604as 64 Od ROS CAS ORDDNORS EEN 4404S A EO HEED ER OC OEERU

- ii-

TABLE OF AUTHORITIES

Page

Cases

Board of Regents v. Tomanio,
446 UsS. 478 2h) reer ee re ee rer rar 10, ll

Bomar v. Keyes, 162 F.2d 136 (2d Cir.)
(Hand, J.), cert. denied, 332
U.S. 825 fo 23 Bear ret ear a DB

Brandon v. Board of Education, 635 F.2d
971 (2d Cir. 1980), cert. denied,
454 UsB< 1123 Rb Re FARR er eer. |

Brown v. United States, Civ. Action
No. 79-2809 (D.D.C. Sept. 3, 1981),
rev'd and remanded, Brown v. United
SCOeen, Tae Fake £eOe COG. CHEs ESOR) kes cies ceceecel?

Brown v. United States, 742 F.2d
1498 CHcGe oy 1984) (en MINED % 6n.46 4 hGh es 6406545406686 2

Burnett Vv. Grettan, 21064 GS. C&« BOSE CESS) cn ccc ccavsceecesnd

Campbell v. City of Haverhill, 155
Uews 610 f . Rre ASre ee or er ere ey eee oe 12

Carrasco v. Klein, 381 F. Supp. 782
ia PP PEPE AG as a CORR OKC OREO EGE 4aE eee eee Reece

Childers v. Independent School District
MO< Re 676 Fide LSae CEGEN CEG. FSSA) c wrcccgcvccccsscacd

Clark v. District of Columbia, (Civ.
Action No. ES ps, PRR SPST Teer eT Te Cree eT eee

Cowdrey v. City of Eastborough, 730
F.2d 1376 (10th Cils i | a ee TrvrrerTrrr rye

Cox v. University of the District of
Columbia, 24 Fair Empl. Prac. Cas.
( BNA) 690 (0.8.C. Dec. 36 | eo ee te ee 14

Davis v. Krauss, 478 F. Supp.
—6©«B23 Cec Oumete |) errr err eee eee eee ee ee ee ee ee ee

Dellums v. Powell, 566 F!2d 216 (D.C. 2977),
cert. denied, 438 U.S. 916 CES TOs cerca weeacaceceaseuls

- iii -

Doe v. Ellis, 103 Wis. 2d 586i,
309 N.W.2d 375 PL PPP err eT Tee ee eT TOT Pere Te ree ee

Donovan v. Reinbold, 433 F.2d
742 (9th Cit. DO FO 6 6666040404 40050640404060046 60S 5S, 14

Ehlers v. City of Decatur, 614 F.2d 54
(5th op SPR ree a a a renee |

Furtado v. Bishop, 604 F.2d 80
(lst Cir. 1979), cert.
denied, 444 U.S. 1035 Bi) en er ee ea res ft

Glover v. City of New York, 401 F. Supp.
632 {RS ASK a} Re er er rer |

Gwinn v. District of Columbia, 434
A.2d at 1378 ices App. 0 bP eer a ana Caen ie 13

, =

Hampton v. City of Chicago, 484 F.2d
602 (7th Cir. 1973), cert. denied,
415 Use 917 Bee Pry PPE rrrrrer rT Tree ree Te Tere eee,

Jaworski v. Schmidt, 684 F.2d 498
(7th Cir. 1982), cert. denied,
460 S.8. 1015 2. | PRPS eee i Can meee are,

Kelton v. District of Columbia, 413
A.2d 919 _ sR ae Sr ere rar ey

Laverne v. Corning, 316 F. Supp. 629
'S.0.8.¥.« kd SS ye ee are a a ere

Lively v. Cullinane, 451 F. Supp.
999 (O.D.G EF 1E6) ca cccncccsccsecesccescascoegeresceeds 1?

Luker v. Nelson, 341 F. SUpp. 111
(N.D. ik PF Cs Re ne a ee ee ee ee ee eee ee ee eee

Mathias v. City of Milwaukee Department
of City Development, 377 F. Supp.
497 (E.D. Wis. og | ER Se ne ee er ee a oe ee.

McClure v. Borne Chemical Co., 292
F.2d 824 (3d Cir.), cert. denied,
SOO Bihan Bae (USSR a sc didn neces Sawesesscsesssecesetd Oy 11

Mills v. County of Monroe, 59 N.Y.2d 307
464 N.Y.S.2d 709, 451 N.E.2d 456 (143),
cert. denied, 104 S. Ct. 551 (1983) .ccccccccccccccec6y 7

» au «

Morell v. Department of Social
Services, 436 U.S. 658 Gy. | PePreererrerrrerrr. ir 18, 19

Moor ve County of Alameda, 411 Ss8. 693 SRST Sa ceva eoweneaee

O'Neil v. City of Parkersburg, 160
Ww. Va. 694, 23 $.B- 504

(WwW. Va. SUFI SERESSERDAOAADAO404648445655400064 040040081

Overman v. Klein, 103 Idaho 795,
654 P.2d 888 Bi EE eee eT eT ee eee er ree

Owen v. City of Independence, 445
U.S. 622 (1980) (quoting Monroe
v. Pape, 365 U.S. 167 (Harlan, J.,

CORGME EAMG) Fa is 6a Cb dwar dbadeddiasnsscccarcivcual Be 18, 19

Paschall v. Mayon? 454 F. Supp. 1289

T RR A - MIMGsteedeas ol edad eee handaads od eedeckueeeeen
Perrote v. Percy, 452 F. Supp. 604 oe

(E.D. Wis. i, | Pe ere a rr ee,

Pinkney v. District of Columbia,
S2o Fs. Beis: See Cees BPP da veccasscsasessxeaesids 17

Reich v. State Highway Department, 386
MAGE, Ghee SPO Matas FOU CEPA ckccdsscscaseccsvoacsaatl

Rizzo Vv. Goode, 423 U.S. 362 2) rere

Robertson v. Wegmann, 436 U.S. S84 (1978). .cccccccccccccceed

Rosa v. Cantrell, 705 F.2d 1208 (10th Cir.
SUGZGs GOEe. GONied, 106 US. C5 CISBS) icccccsicssesescS

Sethy v. Alameda County Water District, 545
Pod BES? (FGM CS. EP TOS COR BOGE co cccaccosesccceseecesd

Shouse v. Pierce County, 559 F.2d 1142
(S9th €ir. 1977) (per |) ay ae

Skrapits v. Skala, 314 F. Supp.
510 (N.D. ot ¥ De veheee chs cbse ees aedbaaneadadsteensnacee

Stewart v. City of Northport, 425
So. 2d 1119 (Ala. 6) eee eer ee ere ere

Turner v. Staggs, 89 Nev. 230, 510 P.2d
879, cert. denied, 414 U.S. 1079 (1973) ceepeeeeeeeseeell

Waller v. Butkovich, 584 F. Supp. 909
(8.8.0.6. errr ee eee Pre rr ere yr

Williams v. Harvath, 16 Cal. 3d 834, 129
Cal. Rotr. 453, S48 P.26 1125 (1982). cccccccscccccccscecd

Williams v. Posey, 475 F. Supp. 133
(M.D. Ga. DUS ACHASREREAAEEOEAED EREEEET ERD ERALEORE OE

Willis v. Reddin, 418 F.2d 702
(9th cic. Bee) c ncccdacccndketaee bebeoawhssibbacsasansean

Wilson v. District of Columbia, 338
A.2d 437 [D6 EP PSDs ed 68 0604050566400 806 RRR

Woods v. Homes & Structures of Pittsburgh,
EOOOGR, 106.5 GES Fe BEND s LATE LABOE) ccccceuccencvscesd
F.W. Woolworth Co. v. Stoddard,
156 A.2d 229 ‘DLs Mg SEPP rere rrr eS re rere eres
-&

Statutes z

O.f 6 Code § 12-309 CLOG Jo ca ceed seeded nassedeedndeecsatecear

Miscellaneous

Hill, “State Procedural Law in Federal
Nondiversity Litigation," 69
Harv. fas Rev. 66 Bg a re er er ere

18 McQuillin, The Law of Municipal
Corporations, BOCICS (56 Ga. TSCA) css ccccovsescinacnceelkl

H.R. Rep. No. 2010 at i PEGORT EEOC CRO ECT ECT CORE TOO COE TSS.

Act of December 29, 1979, Pub.
Ese No. 96-170, 93 Stat. ef) rr ee eee ere

- vi-

IN THE SUPREME COURT OF THE UNITED STATES
October Term 1984

No. 84-1067

DISTRICT OF COLUMBIA,
Petitioner,
v.
KENNETH ™. BROWN,
Respondent.

ON PETITION POR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT Of APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF IN OPPOSITION

REASONS POR DENYING THE writ 2/

l. Introduction

There are no special and important reasons for this
Court to review the court of appeals’ en banc holding that the
six-months notice-of-claims provision of D.C. Code § 12-309
(1981) does not apply to constitutional tort actions against the
District of Columbia. That decision rested on two separate
grounds: (1) &8 a matter of statutory construction, Congress did

not intend for the notice provision to apply to federal causes of

4/ In this pleading, citations to the court of appeals’
decision, Brown v. United States, 742 F.2d 1498 (D.C. Cir. 1984)
(en banc), will be to the opinion as reprinted in the Appendix to
the District's Petition for Writ of Certiorari, and will be cited
as “Pet. App.” References to the District's Petition for a Writ
of Certiorari will be cited as “Cert. Pet.*

action, as opposed to damage suits arising under local law; and
(2) treating the notice statute as a purely local law akin to
state or municipal notice provisions, federal borrowing doctrine
did not provide for its application to federal causes of

action. See Brown v. United States, (D.C. Cir. 1984) (en banc),

Pet. App. at Sa-6a.

The first, statutory-construction basis for the
decision below clearly does not merit review by this Court. It
presents a question of congressional intent affecting only the
District, and has absolutely no national impertance. Moreover,
while the en banc majority is clearly corréct in concluding that
Congress intended Section 12-309 to apply only to ordinary tort
actions arising under local law, see Pet. App. at 6a-9a, the
court's determination was not constitutionally based, and in the
event that Congress disagrees with the court of appeals, it can
pass legislation expressly imposing a special notice limitation
on the accrual of federal causes of action against the

District, 2/ thereby reversing the decision below. Such action

2/ Indeed, the District of Columbia does not appear seriously to
contend that the court of appeals’ interpretation of legislative
intent merits review by this Court. Its “question presented” is
framed in terms of whether the court of appeals “erred in
refusing to apply D.C. Code § 12-309 to constitutional tort
actions, under established borrowing principles.” Cert. Pet. at
i (emphasis ° vert ess, t strict goes into great
detail about the legislative history and purported purpose of
Section 12-309. See Cert. Pet. at 4-7, 10, 17-23. To the extent
that this presentation represents a claim that the statutory-
construction issue satisfies the discretionary standards for
granting certiorari, it must be rejected for the reasons set
forth above.

-2-

would also make the “borrowing” question irrelevant, so that on
neither issued presented by the court of appeals' decision merits
this Court's review.

Several additional factors also demonstrate that the
borrowing-doctrine question does not justify the exercise of this
Court's discretionary review.

First, no irreconcilable conflict in the lower federal
courts or in the state courts requires this Court's resolution,
There is no split in the federal courts on the issue whether
local notice-of-claim provisions like D.C. Code § 12-309 should
be borrowed for use in federal constitutiofal tort actions. The
federal courts uniformly agree that such notice provisions do
not apply to causes of action arising under federal law. See
infra at 5-6 & n.3.

The issue is one that rarely arises in state court.
While one, or at most, two state courts have applied notice
provisions to constitutional damage actions, the weight of state
judicial authority is in conformity with the decision below. See
infra at 6 & n.4. And the state decisions that do apply notice
provisions to federal causes of action are distinguishable and do
not present a conflict on the facts of this case. See infra at
6-8.

Second, the fundamental principles governing the
determination of whether local law should be borrowed for federal
causes of action have been well established by this Court, and

the court of appeals correctly followed these principles in

holding that the District’s notice provision was not the sort of
local law that applied to federal constitutional damages
actions. See infra at 8-14.

Finally, no special considerations of public policy or
practicality run counter to the court of appeals' decision.
Although the District asserts that this case “ia . . . important
for what it portends for [the Pistrict and] other municipal
governments” in terms of liability under 42 U.S.C. § 1963, Cert.
Pet. at 14 (emphasis added), in fact, the decision below
"portends” absolutely nothing of national significance. It has
been clearly established for well over a décade that local
not ice-of-claims provisions do not apply to federal.

constitutional tort suits, see Donovan v. Reinbold, 433 F.2d 738,

742 (9th Cir. 1970), and municipalities have functioned
successfully under this rule. See also infra at 5-6 & n.3, 15-
19.

With respect to the District specifically, the
District's claim that the court of appeals’ holding “makes it
impossible for [it] to establish any claims system that could
reasonably meet its needs -- given the large volume [of] claims
asserted against it and the amount of litigation to which it is a
party,” Cert. Pet. at 13, is unpersuasive. See infra at 15-19.
And to the extent that the inapplicability of local notice
provisions means that municipalities, including the District,
cannot so easily evade liability for the constitutional injuries

they inflict upon individuals, see Cert. Pet. at 13-14, that

result is fully consistent with the public policy goals embodied

in federal constitutional law. See infra at 13-16 & n.9.

2. The Court Of Appeals' Decision Is Consistent
With The Overwhelming Weight Of The Case Law

The question whether a local notice-of-claims provision
should be borrowed for use in constitutional damage actions
against governmental entities is not a novel one. To our

knowledge, every tederal court decision that has addressed the

issue, other than the rulings overturned by the court of appeals'’

n banc dec’ sion in the instant case, has held that such notice
= a

provisions do not apply to constitutional tort suits. 3/ and

3/ See, e.g., Cowdrey v. City of Eastborough, 730 F.2d 1376,
1380 (10th Cir. 1984); Rosa v. Cantrell, 705 F.2d 1208, 1221
(10th Cir. 1982), cert. denied, 104 U.S. 85 (1983); Childers v.
Independent School District No. 1, 676 F.2d 1338, 1342-43 (10th
Cir. 1982); Brandon v. Board of Education, 635 F.2d 971, 973 n.2
(2d Cir. 1980), cert. denied, 454 U.S. 1123 (1981); Ehlers v.
City of Decatur, 614 F.2d 54, 56 (Sth Cir. 1980); Shouse v.
Pierce County, 559 F.2d 1142, 1146 (9th Cir. 1977) (per curiam);
Sethy v. Alameda County Water District, 545 F.2d 1157, 1162 (9th
Cir. 1976) (en banc) Donovan v. Reinbold, 433 F.2d 738, 741-42
(9th Cir. 1970); Willis v. Reddin, 418 F.2d 702, 704-05 (9th Cir.
1969); Waller v. Butkovich, 564 F. Supp. 909, 946 (M.D.N.C.
1984); Davis v. Krauss, 478 F. Supp. 823, 825 (E.D.N.Y. 1979);
Williams v. Posey, 475 F. Supp. 133, 134-35 (M.D. Ga. 1979);
Paschall v. Mayone, 454 F. Supp. 1289, 1298 (S.D.N.Y. 1978);
Perrote v. Percy, 452 F. Supp. 604, 605 (E.D. Wis. 1978); Lively
v. Cullinane, 451 F. Supp. 999, 1000 (D.D.C. 1976); Glover v.
City of New York, 401 F. Supp. 632, 635 (E.D.N.Y. 1975); Carrasco
v. Klein, 381 F. Supp. 782, 787 n.12 (E.D.N.Y. 1974); Mathias v.
City of Milwaukee Department of City Development, 377 F. Supp.
497, 500 (E.D. Wis. 1974); Luker v. Nelson, 341 F. Supp. 111, 118
(N.D. Ill. 1972); Laverne v. Corning, 316 F. Supp. 629, 637
(S.D.N.Y. 1970); Skrapits v. Skala, 314 F. Supp. 510, 511 (N.D.
Ill. 1970); Cox v. University of the District of Columbia, 24
Fair Empl. Prac. Cas. (BNA) 690, 693 (D.D.C. Dec. 3, 1980). Cf.
Woods v. Homes & Structures of Pittsburgh, Kansas, Inc., 489 F.
Supp. 1270, 1295 (1980) (notice-of-claim statute did not apply to
(Cont'd)

while few state courts have confronted the borrowing question,
the majority of those that have decided the matter have reached
the same result as the decision below. 4/

The District asserts that review by this Court is
appropriate because "(t]he decision below conflicts with
decisions of the [state] courts of last resort in New York and
Alabama." Cert. Pet. at 16. However, any conflict between the

\

court of appeals' en banc decision and the cited cases, Stewart

v. City of Northport, 425 So. 2d 1119 (Ala. 1983), and Mills v.

County of Monroe, 59 N.Y.2d 307, 464 N.Y.S.2d 709, 451 N.E.2d 456

(1983), cert. denied, 104 S. Ct. 551 (1983f, is more apparent

than real.

In Stewart v. City of Northport, 425 So. 2d 1119 (Ala.

1983), the Alabama Supreme Court borrowed the state's six-month

notice statute as the applicable statute of limitations in a

Section 1983 action by landowners against a municipality for
unfavorable zoning rulings concerning development of their
property. The court looked to the notice statute only to furnish

the time period for filing the federal cause of action in federal

court. It declared: “The only requirement is that suit be filed
within the six months allowed by the statute of limitations."

425 So. 2d at 1121. The court did not borrow the notice

action against municipality brought under federal securities
law). :

4/ See, e.g., Williams v. Harvath, 16 Cal. 3d 834, 129 Cal.
Rptr. 453, 548 P.2d 1125, 1128-30 (1982); Overman v. Klein, 103
Idaho 795, 654 P.2d 888, 892 (1982); Doe v. Ellis, 103 Wis. 2d
581, 309 N.W.2d 375, 377 (1981).

requirement as a separate, supplemental condition precedent on
the accrual of the federal cause of action against the
municipality.

In Mills v. County of Monroe, 59 N.Y.2d 307, 464

N.Y.S.2d 709, 451 N.E.2d 456, cert. denied, 104 S. Ct. 55]

(1983), the New York Court of Appeals, while acknowledging that
“the Federal District Courts in New York have not applied the
State's notice of claim statutes in civil rights actions brought
under section[s]) 1981 . . . or 1983," 451 N.E.2d at 457,
nevertheless applied a state notice-of-claim provision to a
Section 1981 lawsuit that sought damages for alleged employment
discrimination. Id. at 458-59. ?

However, as the en banc majority pointed out below, the
Mills decision rests in significant part “on the unusual
flexibility of the relevant New York provision." Pet. App. at
23a n.6. By its terms, the New York notice provision provided
for late notice upon application to the court and ao wheeiee of
good cause "so long as the [discretionary] extension does not
exceed the time limit" set by the statute of limitations. 451
N.E.2d at 458. Also, the New York notice requirement ‘'as subject
to "a judicially created exception" waiving notice for “actions
brought ‘to vindicate a public interest.*" Id.

In the instant case, the respondent was imprisoned
during the entire notice period (and indeed, until after he filed
suit). See infra at 17 n.10. Also, he initially brought this

suit as a class action for injunctive and declaratory relief, as

well as damages, to redress the violation of the constitutional
rights of all inmates detained in thet Adjustment Unit of Lorton
Reformatory's Youth Center One. 5/ under the New York notice
provision, it would appear that both the statutory provision for
good-cause extension of the notice period and the judicially
created exception for suits brought to: vindicate the public
interest would have meant that failure to provide notice would
not have barred this action. Thus, as the court of appeals'
majority fully realized, “even Mills would not support the
District's [claim])" that the notice requirement applied to the
instant lawsuit, Pet. App. at 23a n.6, and ‘there is no actual
conflict between the decision below and Mills which would support

review by this Court.

3. The Court Of Appeals Correctly Followed
Well-Established Principles Of Federal
Borrowing Doctrine In Holding That Section
12-309 Does Not Apply To Constitutional
Damage Actions Against The District Of Columbia

a. The Decision Below Was Supported By
Established Principles of Borrowing Doctrine

The court of appeals' refusal to borrow the Section 12-

309 notice requirement for use in federal constitutional tort

5/ The class action was not certified before summary judgment
was granted to the defendants. The District Court dismissed the
respondent's claims for injunctive and declaratory relief on the
ground that they had become moot when he was transferred from
Youth Center One. Because another action, Clark v. District of
Columbia (Civ. Action No. 81-2072), was seeking injunctive and
declaratory relief for the same conditions of confineme:t, on
appeal the respondent dropped his challenge to the mootness
decision and contested only dismissal of his damage action.

# @ <

suits is fully supported by well-settled principles of federal
borrowing doctrine. Federal courts are authorized to borrow
local law for constitutional torts only (1) “where federal law is

unsuited or insufficient ‘to furnish suitable remedies,'"* Moor v.

County of Alameda, 411 U.S. 693, 703 (1973) (emphasis added)

(quoting 42 U.S.C. § 1988), and (2) where the local law is "not
inconsistent with the Constitution and laws of the United

States." Id. Accord, Robertson v. Wegmann, 436 U.S. 584, 588

(1978). See Burnett v. Grattan, 104 S. Ct. 2924, 2928 (1984)

(borrowing of state law for federal civil rights action

authorized to supply “rule of decision required to adjudicate

claims asserted under them") (emphasis added); Board of Regents

v. Tomanio, 446 U.S. 478, 483-84 (1980) (state statute of
limitations is borrowed for § 1983 actions because absence of
such statute in federal law represents "a void"); Jaworski v.
Schmidt, 684 F.2d 498, 500 (7th Cir. 1982) ("“[s]tate law is to be
resorted to in resolving an issue [in a Section 1983} action if,

and only if, federal law is deficient, and if, and only if, state

law ‘is not inconsistent with the constitution and the laws of

the United States'") (emphasis added), cert. denied, 460 U.S.

1015 (1983).

b. The Absence Of A Notice Provision
Does Not Make The Lav Goverr.ing
Constitutional Tort Suits Deficient

The court of appeals correctly held that “the federal

scheme for adjudicating constitutional torts" was not “deficient

for lack of a notice of claims provision." Pet. App. at l2a.
The mere fact that state law addresses a matter not expressly
provided for by Congress does not mean that federal law is

"deficient." See Furtado v. Bishop, 604 F.2d 80, 97 (lst Cir.

1979) (even though issue not addressed by Section 1983, state law
with respect to prejudgment interest does not govern federal

constitutional damages actions), cert. denied, 444 U.S. 1035

(1980); McClure v. Borne Chemical Co., 292 F.2d 824, 830 (3d

Cir.) (congressional silence with respect to security-for-costs
provision not regarded as deficiency in federal law), cert.

denied, 368 U.S. 939 (1961); Hill, “State Procedural Law in

Federal Nondiversity Litigation,” 69 Harv. L. Rev. 66, 92 (1955)
(federal *‘orrowing of local procedural rules whaulé be iimited
because "fijn most .. . instances [other than statutes of
limitations], the application of local procedural rules of an
Outcome-determinative character in the enforcement of federally-

created rights seems neither reasonable nor necessary") (emphasis

added).

Thus, federal law is considered "deficient" when it
does not provide statutes of limitations and coordinate tolling
rules, or survivorship rules, not simply because Congress has not
addressed the issue, but because rules of this sort “have long
been respected as fundamental to a well-ordered judicial system,"

Board of Regents v. Tomanio, 466 U.S. at 487, and are

“universally accepted" as familiar procedural aspects of

- 10 -

litigation. McClure v. Borne Chemical Co., 292 F.2d 824, 830 (3d

Cir.), cert. denied, 368 U.S. 939 (1961). This justifies an

inference that Congress intended courts to borrow such rules when
not expressly provided. Id.

In contrast, as the court of appeals recognized,
notice-of-claim provisions have not been considered
"“indispensablfe] . . . to our ideals of justice. .. . from the

beginnings of our federal system." Pet. App. at 13a. See

McClure v. Borne Chemical Co., 292 F.2d 824, 830 (3d Cir.), cert.

denied, 368 U.S. 939 (1961). Cf. Board of Regents v. Tomanio,

446 U.S. at 487; Campbell v. City of Havertill, 155 U.S. at 610,

616-17 (1895). 5
Indeed, “{t]he necessity for . .. notice... is
frequently a subject of judiciai controversy," 18 McQuillin, The

Law of Municipal Corporations, Notice § 53.151, at 728 (3d ed.

1984), and “a number of courts .. . [have even held] that such
laws are unconstitutional." Id. § 53.152, at 729. S/ this
absence of traditional agreement that notice provisions are
essential to a fair scheme of litigation means that there is no

basis for concluding that Congress must have intended to limit

federal causes of action by notice requirements, and to have the

§/ see, e.g., Reich v. State Highway Department, 386 Mich. 617,
623-24, 194 N.W.2d 700, 76PU157) Uoenlel oF oq 1972) (denial of equal protection);
Turner v. Staggs, 89 Nev. 230, 235, 510 P.2d 879, 883, cert.
denied, 414 U.S. 1079 (1973) (same); O'Neil v. City of
Parkersburg, 160 W. Va. 694, 237 S.E.2d 504, 509 (W. Va. 1977)
(denial of equal protection and due process).

o tt «

lack of a federal notice provision rectified by recourse to state
law.

Moreover, differences between the operation of Section
12-309 and a genuine statute of limitations also demonstrate that
the absence of a notice provision is not a deficiency for
borrowing purposes. Whereas “statutes of limitations affect the

remedy only, and do not impair the right," Campbell v. City of

Haver®iil, 155 U.S. 610, 618 (1895); see Bomar v. Keyes, 162 F.2d

136, 140-41 (2d Cir.) (Hand, J.), cert. denied, 332 U.S. 825

(1947); Pet. App. at 20a-2la, Section 12-309 establishes a
""condition precedent'" to the very existence of any right of

action for tort damages against the District. Gwinn-v. District

of Columbia, 434 A.2d at 1378 (citation omitted). Compliance

with the notice provision thus constitutes an actual element of a
damage action against the District. See id.; Pet. App. at 20a.

It "impair[s] the right," not the remedy, and accordingly is not
the type of local procedural mle that is traditionally borrowed

for federal causes of action. See Campbell v. Haverhill, 155

o

U.S. at 618; Pet. App. at 20a. 2/

1/ The District characterizes Gwinn's understanding of the
notice provision as “dicta." Cert. Pet. at 10 n.9. This is
plainly wrong. A reading of the opinion demonstrates that the
court held that Section 12-309 was not subject to the District's
tolling provisions because it was a “'condition precedent’” to
the “accru[al]" of a “‘right of action’ or ‘entitiement to
maintain an action'" for damages against the District, and not a
statute of limitations. Gwinn v. District of Columbia, 434 A.2d
at 1378 (citation omitted). Since noncompliance with the notice
provision meant that no cause of action had accrued, the tolling
provisions, which “presuppose[d] that a ‘right of action’
exists," id., were inapplicable.

(Cont'd)

= 12 -

Co Borrowing The District's Notice
Provision Would Be Inconsistent With
Policies Underlying Constitutional Tort Suits

The court of appeals also correctly concluded that
Section 12-309 was actually inconsistent with the policies
underlying the federal cause of action. See Pet. App. at 2la-
22a. Unlike statutes of limitations, the District's notice

provision represents a conditional waiver of the District's

sovereign immunity. See Gwinn v. District of Columbia, 434 A.2d

at 1378 & n.3; Kelton v. District of Columbia, 413 A.2d 919, 920

& n.2 (D.C. 1980); Wilson v. District of Cdlumbia, 338 A.2d 437,

438 n.2 (D.C. 1975). It “places the District at a litigative

advantage," Pinkney v. District of Columbia, 439 F. Supp. 519,

524 (D.D.C. 1977), in order “to protect the revenues of the

District of Columbia from unreasonable suits." H.R. Rep. No.

2010 at 2. See Pinkney v. District of Columbia, 439 F. Supp. at

524-25 (special notice given District "for reasons of economy,"

in order to “conserv[{e] taxpayer resources").
pay

F.W. Woolworth Co. v. Stoddard, 156 A.2d 229, 231 (D.C.
1959), and Dellums v. Powell, 566 F.2d 216, 229 (D.C. 1977),
cert. denied, 438 U.S. 916 (1978), which relied upon Stoddard,
are not to the contrary. These cases were primarily concerned
with the point that noncompliance with Section 12-309 is not "a
jurisdictional bar to suit" and is therefore subject to waiver if
not asserted by the District. Dellums v. Powell, 566 F.2d at 229
(emphasis added). Accord, F.W. Woolworth Co. v. Stoddard, 156
A.2d at 251.

- 13 -

Sovereign immunity for municipal governments, including
the District of Columbia, 8/ is fundamentally inconsistent with
the purpose of federal constitutional damage actions, which is
“to provide protection to those persons wronged by the ‘misuse of
power, possessed by virtue of state for District of Coiumbia] law

and made possible only because the wrongdoer is clothed with the

authority of state [or District) law.'" Owen v. City of

Independence, 445 U.S. 622, 650 (1980) (quoting Monroe v. Pape,

365 U.S. 167, 184 (Harlan, J., ccncurring)).

In Owen v. City of Independence, 445 U.S. at 657, this

Court held that "municipalities have no inden ity from damages
liability flowing from their constitutional violatians.®
Accordingly, "[t]o import notions of municipal immunity" embodied
in the District's notice of claims provision “into federal civil
rights law would be to undermine a federal policy rather than
fill a deficiency in the federal scheme." Pet. App. at 22a. See

Hampton v. City of Chicago, 484 F.2d 602, 607 (7th Cir. 1973)

(Stevens, J.), cert. denied, 415 U.S. 917 (1974), cited with

approval in Owen v. City of Independence, 445 U.S. at 647 n.30;

Donovan v. Reinbold, 433 F.2d 738, 742 (9th Cir. 1970); Cox v.

University of the District of Columbia, 24 Fair Empl. Prac. Cas.

(BNA) 690, 693 (D.D.C. Dec. 3, 1980).

8/ By its 1979 amendment to 42 U.S.C. § 1983, Congress expressly
eliminated the District's governmental immunity by subjecting to
statutory suit for its constitutional torts. See Act of December
29, 1979, Pub. L. No. 96-170, 93 Stat. 12841.

- 14 -

4. Refusal To Borrow A Local Not ice-Of-
Claims Provision For Use In Pederal
Constitutional Tort Suits Does Not Seriously
Hinder A Municipality's Ability To

Defend Itself Against Unreasonable Litigation

Finally, the District urges this Court to review the
decision below because it claims that the inapplicability of
local notice provisions will seriously burden it and other
municipalities in defending constitutional damage actions. See
Cert. Pet. at 12-16. It asserts that “(t)he decision . . . makes
it possible for litigants to assert claims against the District
where it is highly doubtful that the District can collect
evidence to defend those legal actions.* fo. at 12. It also
camplains about “the record-keeping burden that the .decision . .
+ has placed on the District .. . in prisoner cases alone,” id.
at 13, declaring that “[(t}he District will have to keep detailed
records concerning its individual prisoners and the operation of
its prisons, possibly for decades, because it has no way of
knowing whether any of its long term prisoners will file suit
upon their release.” Id. at 1314.

The District greatly exaggerates the practical
implications of the ruling below, partly because it ignores the
general desire of persons who believe that they have suffered a
constitutional injury to obtain prompt redress, partly because it
fails to address the limited nature of its own notice provision
even when it is applicable, and partly because it completely

fails to consider the elements of a constitutional damage action

which must be satisfied by any plaintiff bringing such a
suit. 2/

The District, contending that “[t])he facts of this case
+ « » are especially useful in illustrating the difficulties [it]
- « « Will face" under the decision below, Cert. Pet. at 13,
paints a picture of a prisoner's remaining silent about
violations of his constitutional rights throughout the duration

of his incarceration and bringing suit only after his release |

begins the running of the relevant statute of limitations, long
after the relevant incidents occurred. See id.

The “facts of this case,* howevef#, *illustrate* how
unrealistic the District's concern about the absence, of notice
really is. The respondent, while still incarcerated at Lorton
Reformatury, filed the instant suit seeking redress for the

conditions in the Adjustment Unit only a little more than six

3/ the decision below leaves Section 12-309 fujly applicable to
tort suits arising under local law. While the District contends
that “the importance*® of Section 12-309 “is manifest in light of
the thousands of claims (many of which are constitutionally
based) that are filed against the District each year," Cert.
Pet. at 19, see id. at 13, it nowhere specifies the volume of
constitutional damage actions to which it is subject. Assuming
arguendo chet the decision below does impose the “burdens”
asserted by the District, they may well be insignificant if there
are relatively few constitutional tort suits to which the court
of appeals’ ruling applies. On the other hand, if the District
is faced with a large number of constitutional damage actions,
that fact would seem to indicate that the public policy
underlying constitutional tort suits would be furthered by making
the District liable for its violations of constitutional rights
without regard to the special protections of the notice
provision.

@ 16 -

months after his last confinement there. 1°/ the spectre of
stale claims; brought years, “possibly .. . decades,” after the
alleged constitutional violation certainly is not “illustrated by
the facts of this case." Cert. Pet. at 13, 14.

The relative unimportance of tne decision below is
further accentuated by consideration of the limited protection
that Section 12-309 affords the District even when it does
apply. The notice provision covers only damage actions, not
actions against the District for declaratory or injunctive ,

relief. See Lively v. Cullinane, 451 F. Supp. 999, 1000 (D.D.C.

1976); Pinkney v. District of Columbia, 439 F. Supp. 519, 524 n.5

(D.D.C. 1977). Also, it applies only to damage actions against
the District, not to damage suits against the District's officers
or employees for torts committed within the scope of their
duties, even though, as in this case, the District actually
defends the suit and, under its indemnification rules, may be
financially responsible for any resulting monetary awards. See

Monell v. Department of Social Services, 436 U.S. 658, 69 n.55

io/ Apparently, the respondent was confined in the Adjustment
Unit of Youth Center One, whose conditions allegedly violated his
constitutional rights, from Oct. 2, 1978, until Jan. 8, 1979, and
again from Jan. 27, 18 9, until April 3, 1979. See Complaint at
2, Brown v. United States, Civ. Action No. 79-2809 (D.D.C. Sept.
3, 1981), rev'd and remanded, Brown v. United States, 742 F.2d
14928 (D.c. Cir. 1984) fen banc). He was an inmate of Youth
Center One from June 8, 1978, until August 21, 1978, at which
time he was transferred to a federal correctional institution,
where he remained at ieast as late as January, 1981. See
Defendant's Statement of Material Facts #1, Brown v. United
States, supra; Plaintiff's motion for Court Documents, Brown v.
United States, supra. Twe suit was filed on October 19, 1979.

- 17 «-

ow

(1978) (*official-capacity suits generally represent only another
way of pleading an action against an entity of which an officer
is an agent").

Thus, even if Section 12-309 were borrowed for federal
constitutional tort suits, by its terms it would make no
difference to the District with respect to the need to develop
evidence in injunctive and declaratory relief suits against the
District or in damage actions against District officers and
employees defended by the District. Nor would it eliminate
uncertainty as to the District's potential financial obligations
in damage actions against officers or emplbyees. The claim that
the decision below “has drastically altered” (Cert. Pet. at 12)
the protections available to the District with respect to federal
constitutional torts therefore greatly overstates the practical
impact of the court of appeals’ holding.

Similarly, the District's claim that notice is
essential to a municipality's ability to defend constitutional
tort suits ignores the elements that distinguish the federal
cause of action from an ordinary, local-law tort suit. In
constitutional tort suits, where the doctrine of respondeat
superior does not apply, the District cannot be held liable for
isclated instances of misconduct by its officials or employees.

See Monell v. Department of Social Services, 436 U.S. 658, 694

(1978); Owen v. City of Independence, 445 U.S. at 533. Rather,

there must be proof “that official policy for custom) is

responsible for a deprivation of [constitutional] rights.”*

- 19 -

Monell v. Department of Social Services, 436 U.S. at 690; id. at

694. See Owen v. City of Independence, 445 U.S. 622, 633, 657

(1980); Rizzo v. Goode, 423 U.S. 362, 371-77 (1976).

Challenges to action taken pursuant to official policy
embodied in a “policy statement, ordinance, regulation or
decision officially adopted and promulgated," Monell v.

Department of Social Services, 436 U.S. at 690, by a governmental

body obviously will not involve the same sort of problems of
ephemeral proof which occur in ordinary tort suits when the issue
is, e.g., whether a manhole cover was improperly placed or a
District vehicle was recklessly operated. “Similarly, in order to
constitute “custom or usage” for purposes of constitutional tort
liability, the challenged action must be "“'persistent and
widespread . . . permanent and well settled... .'" Id. at 691
(citation omitted). Logically, prompt notice and investigation
are not essential for obtaining proof regarding “well settled"
and “widespread" practices, and the refusal to borrow Section 12-
309 should not unduly burden the defense of constitutional tort

actions.

a t9 =

; yee

CONCLUSION
For the reasons set forth above, the District's
Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

bh,

ANNE SHERFE WALLWORK

Miller, Cassidy, Larroca & Lewin
Suite 500

2555 M Street, N.W.

Washington, D.C. 20037

(202) 293-6400

Counsel of Record for Respondent

s
a

= 20 «

CERTIFICATE OF SERVICE

I hereby certify that on this 22nd day of March, 1985,
I have caused one (1) copy of the foregoing Motion to Proceed In

Porma Pauperis and three (3) copies of the Brief in Opposition to

be served by first-class mail, postage prepaid, upon:

Edward E. Schwab, Esquire

Room 305

District Building

14th & Pennsylvania Avenue, N.W.

Washington, D.C. 20004
ANNE SHERE cae a. :

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1945%3A2. Public record. Not legal advice.