Petition for Writ of Certiorari — Wolsky v. Medical College of Hampton Roads

Qa. .ognanere ! Epreme Court, WS

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NOV 19 1993

NO.

OFFICE Cf FHE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

CHRISTOPHER WOLSKY,

Petitioner,

VS.

MEDICAL COLLEGE OF HAMPTON ROADS,

formerly known as Eastern Virginia Medical Authority,

formerly known as Norfolk Area Medical Center Authority,

Respondent.

Petition For Writ Of Certiorari To The

_ Fourth Circuit Court Of Appeals

PETITION FOR WRIT OF CERTIORARI

W. Mary Stowell

(Counsel of Record)

Linda D. Friedman

Leng Stowell Friedman & Vernon

18] W. Madison, Suite 1550

Chicago, Illinois 60602

(312) 431-0888

l

QUESTIONS PRESENTED

29 U.S.C. § 794 (1986) of the Rehabilitation Act ("the

Rehabilitation Act") prohibits recipients of federal funding from

discriminating against disabled persons. The Rehabilitation

Act, like other antidiscrimination laws such as 42 U.S.C.

§ 1983 (1988) ("Section 1983"), does not contain a statute of

limitations. Although the Fourth Circuit Court of Appeals

applies Virginia's two-year statute of limitations for personal

injuries to § 1983 claims, Almond v. Kent, 459 F.2d 200 (4th

Cir. 1972), it applied the_ one-year statute of limitations

contained in the Virginia Rights of Persons With Disabilities

Act, Va. Code Ann. § 51.5-46(1990)("Virginia Disabilities

Act") to Petitioner's Rehabilitation Act claim.

The questions presented are:

1) Whether federal interests in uniformity and certainty

require application of the same limitations period to all federal

civil rights claims including those brought under § 1983 and the

Rehabilitation Act;

2) Whether actions brought under the Rehabilitation Act

should be characterized as a matter of federal law for statutes

of limitations purposes as actions for personal injury; and

3) Whether application of the one-year statute of limitations

contained in the Virginia Disabilities Act to Rehabilitation Act

claims serves the federal interests.

a

il

TABLE OF CONTENTS

Page

Questions Presented .. . . «3..-« 4-5 5 9 i

Table of Authorities . 2. . 2.53 4 5k eee ili

Statutes 26. 6 8 8 cs we wee IV

Opimions Below ... 644.4540) ) eee 2

Jurisdiction... 006s 4s es 2 ee 2

Statutory Provisions Involved ...............2-. 2

Statement Of The Cage ..... . <4 545 00 eee 3

Reasons For Granting The WE. 2.4. <ia6s 5 eee oe 4

The Decision Below Is Contrary To This

Court's Decision In Wilson And Goodman And

Is In Conflict With The Holdings Of Other Circuits... 5

The Decision Below Undermines Federal

Interests In Uniformity, Certainty And

Minimization Of Unnecessary Litigation ........ 6

The Decision Below Does Not Serve Federal

Interests Vindicated By The Civil Rights Laws .... 7

Conclusion . os «cs ee eee 10

ill

TABLE OF AUTHORITIES

Cases Page

Almond v. Kent,

Co i

Baker v. Board of Regents of State of Kansas,

A. 4.6

Bush v. Commonwealth Edison Company,

ee ame We CPU Gls BOOS) occa tcc ccccccecs 4,6

Goodman v. Lukens Steel Company,

I a iw sy kc ea we sos 08 0s passim

Hall v. Knott County Board of Education,

ee a) | 4,6,7

Henrickson v. Sammons, et al.,

263 Ga. 331, 434 S.E.2d 51 (1993) ..........2... 7

Hickey v. Irving Independant School District,

976 F.2d 980, 983 (Sth Cir. 1992) ............. 4.6

Morse v. University of Vermont,

via Fae 122 (26 Cir. 19992) .. 2 ee ces 4,6,7

Wilson v. Garcia,

ee passim

Wolsky v. Eastern Virginia Medical Authority,

79S F.Supp. 171 (E.D. Va. 1992) .............. 4

Wolsky v. Eastern Virginia Medical Authority,

IF.3a 322 (4th Cir. 1993) ... 2... ccc weet 4

iv

STATUTES

Page

Statutes as Listed in Appendices D:

Title 42 U.S.C. §1981 (1989) .............. passim

wee Ge USA. Giles CRS 6 tc tac eee ess passim

ae ee Se ee Ce 8 kb he 8 owe Seen passim

eee ae a bin wk ce eweee passim

Virginia Code Annotated Statutes §51.5-40 (1990) . passim

Virginia Code Annotated Statutes §51.5-42 (1990) . passim

Virginia Code Annotated Statutes §51.5-46 (1990) . passim

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

CHRISTOPHER WOLSKY,

Petitioner,

VS.

MEDICAL COLLEGE OF HAMPTON ROADS,

formerly known as Eastern Virginia Medical Authority,

formerly known as Norfolk Area Medical Center Authority,

Respondent.

Petition For Writ Of Certiorari To The

Fourth Circuit Court Of Appeals

PETITION FOR WRIT OF CERTIORARI

Petitioner, Christopher Wolsky, by and through his counsel,

respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Fourth

Circuit in this case.

9

&

OPINIONS BELOW

The opinion of the court of appeals (App., infra, A-D) is

reported at 1 F.3d 222. The opinion of the district court is

reported at 795 F. Supp. 171.

JURISDICTION

The judgment of the court of appeals was entered on July

28, 1993. The petition for rehearing and suggestion for

rehearing in banc were denied on August 24, 1993. The

jurisdiction of the Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Title 42 U.S.C. §1981 (1988)

Title 42 U.S.C. §1983 (1988)

Title 42 U.S.C. §1988 (1976)

Title 29 U.S.C. §794 (1986)

Virginia Code Annotated Statutes §51.5-40 (1990)

Virginia Code Annotated Statutes §51.5-42 (1990)

Virginia Code Annotated Statutes §51.5-46 (1990)

3

STATEMENT OF THE CASE

Petitioner is a former medical school student at the Medical

College of Hampton Roads ("the Medical School"). On April

23, 1992, Petitioner instituted this federal action pursuant to the

Rehabilitation Act, 29 U.S.C. § 794 (1986)("the Rehabilitation

Act"). The Complaint alleged that Petitioner was dismissed

from the Medical School and denied readmittance because he

has a neuroendocrine condition known as “Panic Disorder."

Petitioner sought an immediate order of reinstatement to the

Medical School and other relief.

Respondent moved to dismiss Petitioner's Rehabilitation

Act claim, alleging that the statute of limitations had expired.

Respondent asserted that since the Rehabilitation Act did not

have a Statute of limitations, the district court should apply the

one-year statute of limitation that is contained in the Virginia

Rights of Persons With Disabilities Act, Va. Code Ann.

§ 51.5-46 ("Virginia Disabilities Act").

Petitioner acknowledged that his Rehabilitation Act claim

was not timely if it was subject to a one-year statute of

limitations. Petitioner argued that this Court's decisions in

Wilson _v. Garcia, 471 U.S. 261 (1985) and Goodman v.

Lukens Steel Company, 482 U.S. 656 (1987) dictate that

Virginia's two-year Personal Injury statute of limitations

prescribed in Va. Code Ann. Section 8.01-243(A) ("Personal

Injury statute of limitations") applied to his Rehabilitation Act

claim.

Following Wilson, Goodman, and the federal trend of

courts that have confronted this issue, the district court held

that a Rehabilitation Act claim is best characterized for statute

of limitations purposes as a claim for injury to a person. It,

therefore, applied Virginia's two-year Personal Injury statute of

4

limitations to Petitioner's Rehabilitation Act claim. Wolsky v.

Eastern Virginia Medical Authority, 795 F.Supp. 171 (E.D.

a., 1992).

Respondent filed an interlocutory appeal under 28 U.S.C.

§ 1292(b) to the Fourth Circuit Court of Appeals claiming that

the district court erred in applying the two-year Virginia

Personal Injury statute of limitations. It reiterated the argument

that the Virginia Disability Act contains the most appropriate

statute of limitations for Rehabilitation Act claims. The Fourth

Circuit agreed with Respondent and held that the Virginia

Disability Act one-year statute of limitations, rather than the

Virginia Personal Injury two-year statute of limitations, applied

to Petitioner's Rehabilitation Act claim. Applying the one-year

statute of limitations, the Fourth Circuit held that Petitioner's

Rehabilitation Act claim was not timely. Wolsky v. Eastern

Virginia Medical Authority, 1F.3d 322 (4th Cir. 1993).

REASONS FOR GRANTING THE PETITION

The Fourth Circuit's decision below cannot be reconciled

with the holdings of the Second, Fifth, Sixth, Seventh and

Tenth Circuits. These circuits hold that the state personal

injury statute of limitations applies to federal claims brought

under the Rehabilitation Act. Morse v. University of Vermont,

973 F.2d 122, (2d Cir. 1992); Hickey v. Irving Independant

School District, 976 F.2d 980 (Sth Cir. 1992); Hall v. Knott

County Board of Education, 941 F.2d 402 (6th Cir. 1991);

Bush v. Commonwealth Edison Company, 990 F.2d 928 (7th

Cir. 1993); Baker v. Board of Regents of State of Kansas, 991

F.2d 628 (10th Cir. 1993). Moreover, the Fourth Circuit's

decision below is contrary to this Court's holdings in Wilson v.

Garcia, 471 U.S. 261 (1985) and Goodman v. Lukens Steel

Company, 482 U.S. 656 (1987). Finally, the decision below

does not serve federal interests.

5

1. The Decision Below Is Contrary To This Court's Decision

In Wilson And Goodman And Is In Conflict With The

Holdings Of Other Circuits.

The Fourth Circuit's departure from the other circuits is due

entirely to its failure to follow this Court's mandate in Wilson:

that resort to state law shouid not take place until federal law

is exhausted. Wilson, 471 U.S. at 262. This methodology is

required by 42 U.S.C. § 1988 which directs the courts to look

first to the laws of the United States "so far as such laws are

Suitable to carry [the civil and criminal civil rights statutes] into

effect." 42 U.S.C. § 1988 (1976)("Section 1988). Section

1988's direction to look first to federal law rather than state

law applies to Rehabilitation Act claims. '

As this Court explained in Wilson, the first step in

determining the applicable statute of limitations to apply to

federal claims is to characterize the claim. Wilson, 471 U.S.

at 260-261. The characterization of a federal claim is derived

from the elements of the cause of action and Congress' purpose

in providing it. These are matters of federal and not state law.

Id.

Thus, Wilson reviewed various actionable violations of

federal civil rights including discrimination claims and held that

they should al] be characterized as a matter of federal law as

"personal injury" actions for purposes of selecting the state

Statute of limitations to be borrowed and applied. This

approach was adopted to promote simplicity and uniformity in

the enforcement of federal civil rights within each state.

1. Section 505(a)(2) of the Rehabilitation Act provides that the “remedies,

procedures, and rights,” set forth in Title VI apply to Rehabilitation Act

claims. 29 U.S.C. § 505(a)(2). In turn, statutory construction of Title VI

claims is governed by § 1988. 42 U.S.C. § 1988 (1976).

6

Similarly, in Goodman v. Lukens Steel Company, 482 U.S.

656, 660 (1987) this Court reaffirmed Wilson's holding and

expanded it to claims brought under 42 U.S.C. §1981. Id. In

so holding, Wilson and Goodman flatly and explicitly rejected

the approach of sifting through all of the extant state causes of

action to select and apply the limitations period applicable to

the specific state cause most precisely analogous to the conduct

actionable under federal civil rights law. Wilson, 47i U.S. at

276, Goodman, 482 U.S. at 661.

2. The Decision Below Undermines Federal Interests In

Uniformity, Certainty And Minimization Of Unnecessary

Litigation

In not applying the personal injury statute of limitations to

Petitioner's Rehabilitation Act claim, the Fourth Circuit

completely disregarded the teachings of Wilson and Goodman.

It skipped the crucial first step of characterizing the

Rehabilitation Act claim as a matter of federal law. Had it

done so the Fourth Circuit would have found, as had its sister

circuits, that the claim is a part of the corpus of federal civil

rights laws and is best characterized as an injury to the person.

Morse v. University of Vermont, 973 F.2d 122, 127 (2d Cir.

1992); Hickey v. Irving In nden “ | District, 976 F.2d

980, 983 (Sth Cir. 1992); Hall v. Knott County Board of

Education, 941 F.2d 402, 409-410 (6th Cir. 1991); Bush v.

Commonwealth Edison Company, 990 F.2d 928, 933 (7th Cir.

1993); Baker v. Board of Regents of State of Kansas, 991 F.2d

628, 630 (10th Cir. 1993). Armed with this characterization,

the Fourth Circuit would have turned to state law only for the

length of the personal injury statute. In doing so, it would

have secured for Virginia plaintiffs the significant benefit

mandated by Wilson and Goodman: the ability to look to one

place to determine the limitations period — to all such

federal civil rights claims.

~

By skipping the characterization step mandated by Wilson

the Fourth Circuit reverted to the pre-Wilson practice of

searching for a precisely analogous state law claim. But the

existence of a precisely analogous state discrimination claim is

completely irrelevant,’ just as, after Wilson, the existence of

a precisely analogous state assault or battery claim is irrelevant.

Rather, the proper course, the course which promotes

uniformity and certainty, is that of characterizing the disability

claim and grouping it with the other "personal injury" federal

civil rights claims.

3. The Decision Below Does Not Serve Federal Interests

Vindicated By The Civil Rights Laws.

Moreover, applying the state personal injury statute of

limitations to all federal civil rights claims is consistent with

Congress’ instruction: state law shall only apply "so far as the

Same 1S not inconsistent with federal law." 42 U.S.C. § 1988.

"The importation of the policies and purposes of the States on

matters of civil rights is not the primary office of the

borrowing provision in § 1988; rather, the statute is designed

to assure that neutral rules of decision will be available to

enforce the civil rights actions..." Wilson, 471 U.S. at 269.

2. The Fourth Circuit justified its break with two of the other circuits on

the grounds that these circuits could not consider applying a statute of

limitations like the one contained in the Virginia Disability Act because the

respective states had not enacted statutes forbidding discrimination against

disabled persons. Morse v. University of Vermont, 973 F.2d 122 (2d. Cir.

1992); Hall v. Knott County Board of Education, 941 F.2d 402 (6th Cir.

1991). But this post hac factual distinction was not the basis for those

decisions. Additionally, at least one other court, the Supreme Court of

Georgia, has applied the personal injury statute of limitations to federal

Rehabilitation Act claims notwithstanding the availability of a state

discnmination law prohibiting discrimination on account of disability.

Henrickson v. Sammons, et al., 263 Ga. 331, 434 S.E.2d 51 (1993).

ca

8

Characterizing all federal civil rights claims including those

brought under the Rehabilitation Act as personal injury actions

minimizes the risk that the choice of a state statute of

limitations would not fairly serve the federal interests

vindicated by those laws. As this Court explained in Wilson,

"[g]Jeneral personal injury actions, sounding in tort, constitute

a major part of the total volume of civil litigation in the state

courts today,..." and thus, "[iJt is most unlikely that the period

of limitations applicable to such claims [personal injury] ever

was, or ever would be, fixed in a way that would discriminate

against federal claims, or be inconsistent with federal law in

any respect." Wilson, 471 U.S. at 279.

By applying a limitations period contained in a State

antidiscrimination law to the Rehabilitation Act, the Fourth

Circuit imported into federal law state concerns and purposes.

The Virginia Disabilities Act reflects a compromise between

competing interests as is evident in the limitation of the

recovery of back pay to six months. Va. Code Ann. § 51.5-

46(B). Moreover, it is also telling that Virginia would afford

its personal injury claimants two years to bring suit but relegate

claimants under the Disability Act to a period of only one year.

Both the limitation of back pay to six months and the one-year

Statute of limitations serve state concerns or policies, not

federal interests.

There is no indication that Congress would sanction the

importation of state policies or concerns into the Rehabilitation

Act through the borrowing of a statute of limitations. As this

Court noted in Wilson, it was the very ineffectiveness of state

remedies that led Congress to enact the Civil Rights Acts in the

first place. Wilson 471 U.S. at 279. Given that a similar

motivation probably prompted the passage of the Rehabilitation

Act, it is unlikely that Congress would have deferred to state

concerns or policies had it set a limitations period for any of

these civil rights claims.

Clearly, the broad remedial purpose of the Rehabilitation

Act is vitiated by importation of parochial state concerns and

interests through the borrowing of a statute of limitations. Yet,

as a result of the Fourth Circuit's decision, in Virginia, the

Rehabilitation Act is relegated to a level below other civil rights

and personal injury claims.

The uniform characterization of all federal civil rights

actions as personal injury actions serves the federal interests

vindicated by those laws. The Fourth Circuit's decision to

apply a one-year limitation to Rehabilitation Act claims but a

two-year limitation to § 1983 claims undermines federal

interests.

As a result of its failure to characterize Petitioner's

Rehabilitation Act claim as a matter of federal law, the Fourth

Circuit's decision below is in direct conflict with the holdings

of the Second, Fifth, Sixth, Seventh and Tenth Circuits. The

decision below is also contrary to this Court's mandate in

Wilson and Goodman that resorting to state law should not be

undertaken until principals of federal law are exhausted.

Further, the decision below does not fairly serve the federal

interests vindicated by the Rehabilitation Act. Because the

issues presented in this petition are of recurring importance, not

10

only to Virginia plaintiffs but also to the hundreds of persons

who file Rehabilitation Act claims each year,’ they are worthy

of review by this Court.

CONCLUSION

For all the reasons stated above, a writ of certiorari should

be issued to review the judgment and opinion of the Court of

Appeals for the Fourth Circuit.

Respectfully submitted,

Mary Stowell

(Counsel of Record)

Linda D. Friedman

Leng Stowell Friedman & Vernon

181 W. Madison, Suite 1550

Chicago, Illinois 60602

(312) 431-0888

November, 1993 ~

3. Many states have enacted antidiscrimination statutes that prohibit

discrimination on the basis of disability and permit aggrieved individuals to

file suit in state court. Armed with the Fourth Circuit's decision below, it

is likely that Rehabilitation Act respondents will erroneously assert that

statutes of limitations contained in state antidiscrimination laws time bar

federal Rehabilitation Act claims. The following state antidiscrimination

laws contain statutes of limitations that are shorter than their personal injury

statutes of limitations: compare Ga. Code Ann. § 34-6A-6(a) (1993)(180

days) with Ga. Code Ann. § 3-1004 (1964)(two years); compare Minn. Stat.

§ 363.06 (1992)(one year) with Minn. Stat. § 541.07 (1986)(two year);

compare N.C. Gen. Stat. § 168A-12 (1992)(180 days) with N.C. Gen. Stat.

§ 1-52(1981)(three years) and N.C. Gen. Stat. § 1-54(3)(one year).

APPENDICES

A:

D:

CONTENTS OF APPENDIX

Page

Opinion of the United States Court of

Appeals for the Fourth Circuit, July 28, 1993... . A-1

Opinion and Order of the United States

District Court for the Eastern District of

Virginia, Norfolk Division, July 29, 1992 ...... B-]

Order on Rehearing - United States Court

of Appeals for the Fourth Circuit,

Ts ge ad og ag a ee oe C-]

ES a eee a eD D-]

A-1

APPENDIX A

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Christopher Wolsky,

Plaintiff-Appellee,

Vv. No. 92-2275

Medical College of Hampton

Roads, formerly known as Eastern

VA Medical Authority, formerly

known as Norfolk Area Medical

Center Authority,

Defendant-Appellant.

Nowe Ne eee ee eee ee

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Henry C. Morgan, Jr., District Judge

(CA-92-319)

Argued: March 30, 1993

Decided: July 28, 1993

Before ERVIN, Chief Judge, and WIDENER

and HAMILTON, Circuit Judges.

Reversed and remanded by published opinion. Chief Judge

Ervin wrote the opinion, in which Judge Widener and Judge

Hamilton joined.

A-2

COUNSEL

ARGUED: Alfred James Johnston, POST & SCHELL, P.C.,

Philadelphia, Pennsylvania, for Appellant. Stephen Pollak,

SHEA & GARDNER, Washington, D.C., for Appellee.

ON BRIEF: Sidney R. Steinberg, POST & SCHELL, P.C..

Philadelphia, Pennsylvania, for Appellant. Linda D. Friedman,

LENG, STOWELL, FRIEDMAN & VERNON, Chicago,

Illinois for Appellee.

OPINION

ERVIN, Chief Judge:

The Medical College of Hampton Roads ("Medical College")

appeals from an order entered by the district court denying its

motion to dismiss. This is an interlocutory appeal, permission

to appeal was granted under 28 U.S.C.A. § 1292(b), in which

the Medical College raises one issue: whether the district court

erred by applying the Virginia personal injury statute of

limitations to the Federal Rehabilitation Act, 29 U.S.C. § 794.

We hold that the district court did not apply the proper statute

of limitations and reverse its decision.

Christopher Wolsky enrolled as a medical student at the

Medical College of Hampton Roads in 1986. At the time he

entered medical school, Wolsky suffered from a panic disorder.

During Wolsky's first year at the Medical College, a resident

diagnosed him as addicted to his panic disorder medication and

ordered it changed. During his second and third years of

A-3

medical school, Wolsky's academic performance worsened in

part due to the side effects of his new medication for the panic

disorder. In May 1990 Wolsky was dismissed from the

Medical College. He applied for readmission both in August

1990 and February 1991 and was denied readmission on both

occasions.

In April 1992 Wolsky filed suit against the Medical College

claiming discrimination in his dismissal and subsequent denials

of readmission based upon his alleged disability under section

504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (the

"Rehabilitation Act"). Wolsky contends that his panic disorder

is a disability under the Rehabilitation Act, and that the

disorder's effects and complications resulted in his dismissal

from the Medical College.

The Medical College filed a motion to dismiss Wolsky's

complaint, alleging that the statute of limitations had expired.

In its motion, the Medical College argued that since the

Rehabilitation Act did not have a statue of limitations, the

district court should apply the most analogous state statute of

limitations. It believed that the most appropriate statute of

limitations was that provided in the Virginia Rights of Persons

with Disabilities Act, Va. Code Ann. § 51.5-40 to 46, (the

"Virginia Act") which has a one-year statute of limitations. See

id. The district court agreed that it should apply the most

analogous state statute of limitations; however, it held that

Virginia's statute of limitations for personal injury was more

analogous than the Virginia Act's limitations period. Since the

Virginia personal injury statute of limitations is two years, see

Va. Code Ann. § 8.01-243(A), the district court held that

Wolsky had filed the action in a timely manner. This appeal

ensued.

A-4

Congress occasionally omits statutes of limitations in civil

rights legislation and did so when it enacted the Rehabilitation

Act. Wilson v. Garcia, 471 U.S. 261 (1984). In the event of

such an omission, 42 U.S.C. § 1988(a) provides for the

selection of an appropriate common-law statute of limitations,

which is most applicable to the federal action. '

In Wilson, the Supreme Court addressed the issue of which

State statute of limitations should be employed when the federal

Statute omits a statute of limitations. Jd. at 268. The Wilson

Court stated that the central issue was "the selection of ~ the

“ most appropriate,’ or “the most analogous’ state statute of

limitations to apply.” Jd. (footnotes omitted). The Court

opined that section 1988(a) required courts to look to the most

appropriate statute in each individual state, and noted that

uniformity within the state was critical. The Wilson Court held

1. Section 1988(a) provides in relevant part:

The jurisdiction in civil and criminal matters conferred on the district

court by the provisions of this Title and of Title "CIVIL RIGHTS,” ...

shall be exercised and enforced in conformity with the laws of the

United States, so far as such laws are suitable to carry the same into

effect; but in all cases where they are not adapted to the object, or are

deficient in the provisions necessary to furnish suitable remedies and

punish offenses against law, the common law, as modified and changed

by the constitution and statutes of the States wherein the court having

jurisdiction of such civil ... case is held, so far as the same is not

inconsistent with the Constitution and laws of the United States, shall be

extended to and govern the said courts in the trial and disposition of the

cause ...

42 U.S.C.A. § 1988(a).

A-5

that the section 1983 claim before it was most closely

analogous to a "tort action for the recovery of damages for

personal injury." /d. at 276. It found that the broad purposes

of section 1983 and the variety of claims encompassed under it

most closely resembled tort law.* The Supreme Court

subsequently extended this reasoning to section 1981 claims in

Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987).

At the outset we note that the statute at issue in the instant

case is neither section 1981 nor section 1983, but section 504

of the Rehabilitation Act. The Act states that no otherwise

qualified individual shall be discriminated against solely by

reason of his or her handicap in any program that receives

federal funding. Since the Rehabilitation Act does not provide

its own statute of limitations and 28 U.S.C. § 1658, the general

federal statute of limitations is not applicable in this case, the

district court must turn to state law for an appropriate statute

of limitations.

This case offers us the opportunity to answer the question we

left open in Eastman v. Virginia Polytechnic Inst. & State

University, 939 F.2d 204 (4th Cir. 1991). There we concluded

that the Rehabilitation Act neither provided for the award of

compensatory damages for pain and suffering nor punitive

2. The Fifth Circuit ably paraphrased the Wilson Court's test of when to

apply a state statute of limitations under section 1988:

(1) follow federal law if federal law provides a limitations period; (2)

apply the common law as modified by state constitution or statute, if no

limitations period is provided by federal law; (3) but apply state law only

if it is not inconsistent with the constitution and laws of the United

States.

Hickey v. Irving Indep. School Dist. 976, F.2d 980, $82 (Sth Cir. 1992).

We find this test instructive in the instant matter.

A-6

damages. /d. at 209. The district court had held that the statute

of limitations found in the Virginia Act was the most similar

Statute to the Rehabilitation Act. We declined, however, to

decide which was the most appropriate statute of limitations to

apply to the Rehabilitation Act; we decided the case on the

grounds that the Rehabilitation Act does not provide the

damages the plaintiff sought. This case requires us to decide

that issue squarely.

The Virginia Rights of Persons with Disabilities Act was

modeled after and is almost identical to the Rehabilitation Act.

The Virginia Act prohibits discrimination on account of

handicap status in any program receiving state funding. The

Virginia Act's language tracks the Rehabilitation Act's language

almost precisely. It, however, contains a one-year statute of

limitations for filing an action.

Given that the Virginia Act is patterned after the

Rehabilitation Act, the district court should have applied the

statute of limitations found in the Virginia Act rather than the

personal injury statute of limitations. Wilson requires district

courts to look to the most appropriate state statute of

limitations. We have held that federal courts should follow the

limitations period set by the state in which the district court

sits. Almond v. Kent, 459 F.2d 200, 203 (4th Cir. 1972) (citing

O'Sullivan v. Felix, 233 U.S. 318 (1914)).

The district court, however, attempted to follow the

precedent of the other courts that have addressed this issue.

See Hickey v. Irving Indep. Sch. Dist. , 976 F.2d 980, 983 (Sth

Cir. 1992); Morse v. University of Vermont, 973 F.2d 122, 127

(2nd Cir. 1992); Hall v. Knott County Bd. of Educ., 941 F.2d

402, 409-10 (6th Cir. 1991). The reasoning in those cases was

similar; the Rehabilitation Act is an anti-discrimination statute

similar to section 1983 or Title VI of the Civil Rights Act of

A-7

1964. In those circuits the personal injury statutes were applied

because Rehabilitation Act claims are injuries to individuals and

analogous to personal injury claims.

Morse and Hall are readily distinguishable from the instani

case on the grounds that the respective states had not enacted

Statutes forbidding discrimination against disabled persons or

similar statutes. Those courts, on the one hand, could not

consider applying a statute of limitations found in a state statute

which had been modeled on the Rehabilitation Act. Virginia,

on the other hand, seemingly intended its legislation to track

the federal Act and provide its citizens with the same rights and

remedies. The Virginia Act states

The Department for Rights of Virginians with Disabilities

shall promulgate such regulations as may be necessary to

implement this section. Such regulations shall be consistent,

whenever applicable, with regulations imposed under the

Federal Rehabilitation Act of 1973 ...

Va. Code Ann. § S51.5-43. Both statutes prohibit

discrimination against handicapped persons by entities that

receive either state or federal funding Jd.. at § 51.5-40 and 29

U.S.C. § 794. Portions of the Virginia Act directly quote from

the corresponding sections of the Rehabilitation Act. Both the

Rehabilitation Act and the Virginia Act afford only equitable

remedies. Applying the Virginia Act's statute of limitations is

consistent with the mandates of Wilson and Goodman.

Only in Hickey did a court have the opportunity to apply a

statute aimed at ending discrimination based on handicapped

status. Hickey, 976 F.2d at 982. There the court noted,

however, that "[t]he Texas statute which prohibits

discrimination against handicapped persons and creates a civil

cause of action for redress of such discrimination does not

A-8

contain a limitations period." /d. at 982-83 n.3. Therefore, it

had to look to another statute. In a footnote the Hickey court

examined numerous possible applicable statutes of limitations

before deciding to use the one contained in the Texas personal

injury statute. /d. In the instant action the district court should

have looked ne further than the Virginia Act.

The district court drew an analogy between this action and

a Title VI action. Since Title VI has no statute of limitations,

the court extended the analogy to section 1981 and 1983

actions. The district court's reasoning overlooked the fact

section 1983 actions cannot have parallel state law provisions.

Therefore, district courts have to look to more general statutes

and their limitations periods. The Wi/son Court noted that

[bJecause the § 1983 remedy is one that can “override

certain kinds of state laws" and is, in all events,

"supplementary to any remedy any State might have," it can

have no precise counterpart in state law. Therefore, it is the

"purest coincidence" when state statutes or the common law

provide for equivalent remedies; any analogies to those

causes of action are bound to be imperfect.

Wilson, 471 U.S. at 272 (citations omitted). Given that a

section 1983 action does not have a counterpart in state law, a

general personal injury statute of limitations may be

appropriate. Wilson acknowledged that minor differences

between state and federal statutes are acceptable and the most

analogous statute need not be identical. Jd. In the instant

matter, however, the Rehabilitation Act does have an exact

state law counterpart.

A-9

Wolsky contends that the exact counterpart or most similar

State statute analogy is not appropriate, but fails to demonstrate

precisely how it is inappropriate. He argues that even if the

exact counterpart analysis is correct, the Virginia Act exempts

some discrimination that the federal law permits and therefore

that the Virginia Act is not an exact counterpart. We find the

distinctions between the two statutes are not significant enough

to decline applying the statuie of limitations as set forth in the

Virginia Act.

IT]

Given that the Virginia Act is modeled after the

Rehabilitation Act, we break with the conclusions of the other

circuits to apply a personal injury statute of limitations. See

Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 983 (Sth Cir.

1992); Morse v. University of Vermont, 973 F.2d 122, 127

(2nd Cir. 1992); Hall v. Knott County Bd. of Educ., 941 F.2d

402, 409-10 (6th Cir. 1991); Andrews v. Consolidated R.R.

Corp., 831 F.2d 678, 683 (7th Cir. 1987). The Virginia Act

is the most analogous statute, and its statute of limitations is

applicable. Therefore, the decision of the district court is

reversed and the case is remanded to the district court with

instructions to dismiss Wolsky's claim.

REVERSED AND REMANDED

B-1

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

CHRISTOPHER WOLSKY,

Plaintiff,

)

)

)

)

v. ) Civil No. 2:92cv3119

)

EASTERN VIRGINIA )

MEDICAL AUTHORITY, )

formerly Norfolk Area )

Medical Center Authority )

and now MEDICAL ~— )

COLLEGE OF HAMPTON _ )

ROADS, )

)

)

Defendants.

OPINION & ORDER

Procedural History

On April 23, 1992, Christopher Wolsky (hereafter

"PLAINTIFF" or "WOLSKY") filed a complaint in this court

demanding trial by jury on his allegations in Count I that the

Eastern Virginia Medical Authority (a/k/a Medical College of

Hampton Roads) (hereafter "DEFENDANT" or "MEDICAL

SCHOOL") discriminated against him in violation of Section

504 of the Rehabilitation Act of 1973 (29 U.S.C. Section 794)

(hereafter "REHABILITATION ACT") and in Count II that the

Medical School breached its contract with him. In response,

on June 11, 1992, defendant moves this court to dismiss Count

B-2

I of plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6) as

a matter of law or, in the alternative, to strike plaintiff's claim

for compensatory and punitive damages, as well as his jury

demand, under Count I. Defendant further moved this court

for a more specific pleading and to strike plaintiff's claim for

punitive damages and compensatory damages arising from

plaintiff's alleged emotional distress under Count II. The

parties have fully briefed the issues presented by defendant's

motion and the motion is now ripe for decision.

Facts

In considering a motion to dismiss a complaint for failure to

State a claim upon which relief can be granted, every allegation

of the complaint must be taken as admitted by the defendant.

Tahir Erk v. Glenn L. Martin Co., 116 F.2d 865, 867 (4th

Cir. 1941). An examination of plaintiff's complaint in this case

reveals the following facts:

1) The Medical School receives financial assistance from

the United States Department of Education, making it subject

to Section 504 of the Rehabilitation Act; plaintiff is a qualified

handicapped person under the Act with respect to

postsecondary education.

2) Plaintiff, at the age of 20; was diagnosed as having

a hereditary neuroendocrine condition known as “Panic

Disorder." Following his diagnosis, plaintiff completed his

pre-medical studies and scored well enough on an entrance

examination to qualify for admission to the Medical School.

Plaintiff successfully completed his firs year at the Medical

School.

a’

B-3

3) In January of 1987, plaintiff opted to receive treatment

for his condition from a resident in training at the Medical

School. The resident determined that plaintiff was addicted to

Benodiazepine, the medication he took to control his condition.

In response to a threat from the resident that she would tell the

administration of the Medical School that plaintiff was a

"Benodiazepine addict," plaintiff withdrew from the use of

Benodiazepine and began taking an alternate medication

prescribed by the resident.

4) After the change in medication, plaintiff developed

severe insomnia, ataxia, slurred speech, daytime drowsiness

and double vision, among other symptoms.

5) Plaintiff's second year grades declined substantially

from those of his first year. After failing a ten (10) day course

in January of 1988, plaintiff was told that he would have to

repeat his second year. At some point, plaintiff related the

resident's threats and the change in his medication to the

Medical School's Progress Committee; he was subsequently

given a Fellowship in the Pharmacology Department and able

to successfully complete his second year.

6) During his third year, plaintiff continued to suffer

from insomnia related to the resident's treatment of him.

Plaintiff passed all but one of his third-year classes. Plaintiff

was not allowed to repeat this class and was, subsequently,

dismissed from the Medical School.

7) In both August of 1990 and February of 1991,

plaintiff requested but was denied readmittance to the Medical

School. At the times of his dismissal and requests for

reinstatement, plaintiff met the academic and_ technical

standards for readmission to the Medical School.

B-4

Discussion

A. Count I

In weighing the validity of a motion to dismiss for failure to

state a claim upon which relief can be granted, the duty of the

court is to consider whether, in the light most favorable to the

plaintiff, the complaint is sufficient to state a valid claim for

relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957);

Tahir Erk, 116 F.2d at 869. In the present case, defendant

argues that Count I of plaintiff's complaint must be dismissed

as a matter of law because it is time-barred by the applicable

statute of limitations.

The Rehabilitation Act does not contain a provision

specifying a controlling statute of limitations. Neither the

Supreme Court, the Fourth Circuit, or a court of this District

has addressed the question of what specific statute of limitations

controls a claim under the Act. The Supreme Court has held,

however, that where a federal civil rights statute does not

contain a Statute of limitations, "federal courts should select the

most appropriate or analogous state statute of limitations."

Goodman v, Lukens Steel Co., 482 U.S. 656, 660 (1987). In

both Wilson v. Garcia, 471 U.S. 261 (1985) and Goodman, the

Supreme Court held, respectively, that simple, broad

characterizations of all §1983 and §1981 claims, rather than

case by case analyses of the particular facts and form of action

presented in each case, best fit the remedial purposes of those

Statutes. In rejecting the case by case approach, the Court

sought to prevent counsel from arguing that two (2) or more

periods of limitations should apply to each federal claim, to

prevent the application of different statutes of limitation within

a single state for the same federal claim and to prevent multiple

periods of limitations from applying to the same case. To that

end, then, the Court went on to hold in both cases that the

B-5

respective state statutes of limitation application to personal

injury actions should apply to all claims brought under §1983

and §1981 (rather than potentially more analogous, more

specific statutes of limitation available in a particular case).

The Medical School argues that the most "appropriate or

analogous" state statute of limitation in the present case is that

contained in the Virginia Rights of Persons With Disabilities

Act, Va. Code Ann. Sections 51.5-40 et seq., as amended

(hereafter "VIRGINIA ACT").' In support of this position,

defendant relies on Eastman v. Virginia Polytechnic Institute

and State University, 732 F.Supp. 665 (W.D.Va. 1990)

affirmed on other grounds 939 F.2d 204 (4th Cir.1991).

In Eastman, Chief Judge Turk of the Western District of

Virginia held that since the Virginia Act is patterned to be

consistent with the Rehabilitation Act, the Virginia Act is the

most analogous state statute and, accordingly, must be applied

to actions under the Rehabilitation Act in Virginia. Defendant

gives great weight to the fact that Eastman is the only decision

1. Section 51.5-40(b) of the Virginia Act sets forth a one (1) year statute

of limitations: "An action may be commenced pursuant to this séction any

time with‘n one year of the occurrence of any violation of rights under this

chapter.”

B-6

by a court in the Fourth Circuit to address the limitations issue

as applied to the Rehabilitation Act and that it is, therefore,

uncontradicted.’

Plaintiff argues that the decision is not legally supportable

because the District Court overlooked the Supreme Court's

mandate in Wilson, supra, and Goodman, supra, to the effect

that federal law rather than stat law governs the characterization

of a federal claim for statute of limitations purposes. Had the

District Court properly characterized the Rehabilitation Act

claim in Eastman according to federal law, plaintiff's argument

continues, it would not have even had the Virginia Act among

its choices for selecting a limitations period. With the Virginia

Act outside the range of potential choices, plaintiff concludes

that Rehabilitation Act claims are, on the whole, more

analogous to personal injury actions than to any other types of

actions and that the proper period of limitation is Virginia's two

year personal injury limitation. Va. Code Ann. Section 8.01-

243(A).

The defendant urges this Court to reject plaintiff's argument

for a number of reasons. First, defendant falls back on the

District Court opinion in Eastman and the fact that it is the sole

application of a limitations period in a Rehabilitation Act case

in Virginia. The defendant next argues that the concern over

2. On appeal, the Fourth Circuit affirmed the District Court's decision in

Eastman to grant the defendant college summary judgment on the

Rehabilitation Act claim. In so affirming, however, the appellate court did

not address the limitations issue relied upon by the District Court and

instead affirmed on the basis that the relief sought by the plaintiff was

unavailable under the Rehabilitation Act. The Court held that the relief

issue “offers a single, comprehensive basis for our decision ... " Eastman,

939 F.2d 204, 295 (4th Cir. 1991). In addition, one mouher of the panel

filed a one sentence concurring statement stating that he would affirm the

District Court's decision on the basis of the limitations issue.

— SS

B-7

multiple periods of limitations which underscored the Supreme

Court's decisions in Wilson and Goodman are inapplicable to

claims arising under the Rehabilitation Act because it, in

contrast to §1981 and §1983, is a relatively recent statute,

narrowly and specifically drawn to limit its scope to claims of

discrimination on the basis of handicap against recipients of

federal funding. Finally, defendant argues that in the absence

of a controlling authority concerning the appropriate

characterization of a Rehabilitation Act claim, the fact that the

Virginia Act is almost identical to the Rehabilitation Act in both

its requirements and its remedies makes it the “most

appropriate" limitations period provided by state law.

In Johnson v. Davis, 582 F.2d 1316 (4th Cir. 1978), the

Fourth Circuit, in the contest of a §1983 action, was faced with

a Situation quite similar to that presented in the present case.

In that case, in response to the Fourth Circuit decision in

Almond v. Kent, 459 F.2d 200 (4th Cir. 1972) (Holding that

all §1983 actions were to be grouped and valued with actions

to redress personal injuries and that, therefore, Virginia's two

(2) year personal injury statute of limitations was applicable),

the Virginia General Assembly enacted an amendment to

Virginia's personal injury statute of limitations specifically

designed to shorten the period of limitations for §1983 actions

from two (2) years to one (1) year. The District Court applied

the one (1) year statute of limitations to the plaintiff's §1983

claims and dismissed them as time-barred. The Fourth Circuit

reversed, declining to adopt the special limitation period on

§1983 actions because, "[T]he determination of which

limitation period would apply should not turn on armchair

concepts of survivability of the common law or on the form of

the action brought but should instead turn on the primary object

of the litigation which is compensation for injury suffered by

the person." Johnson, 582 F.2d at 1318. The court then went

on to reason, alternatively, "... [t]here is no rational basis for

B-8

distinguishing between §1983 actions and actions for injury to

the person in light of the purposes for which statutes of

limitations are generally prescribed. These statutes are statutes

of repose ... The facts to be proven, the witnesses to be called

to testify, the evidence to be considered are generally the same

for §1983 actions as for state actions brought to compensate for

the personal injury underlying the deprivation of federal

constitutional rights.” Id. at 1319.

Section 504 of the Rehabilitation Act was modeled on Title

VI of the Civil Rights Act. See School f_ Nassau

County, Florida v. Arline, 480 'J.S. 273 (1987). Title VI, like

Section 504, does not have a specific statute of limitations. In

determining which state statute of limitations applies to Title VI

actions, courts have looked to the statute of limitations used in

§1981 and §1983 actions. See Chambers v.Om

School Distr., 536 F.2d 222 (8th Cir. 1976); Baker v. Bd. of

Regents of State of Kansas, 721 F.Supp. 270 (D.Kan. 1989);

and Barcia v. Sitkin, 89 F.R.D. 382 (S.D.N.Y. 1981). The

primary object of both Title VI and Rehabilitation Act claims,

like §1981 and §1983 claims, is to compensate a party for the

injury he has suffered due to discrimination. When viewed in

this light, again like §1983 and §1983 claims, there is no

rational reason for distinguishing between Title VI and

Rehabilitation Act claims and action for an injury to a person

for limitations purposes.

After a review of the pertinent law and the respective

arguments of the parties, it is apparent to this Court that the

decision upon defendant's motion to dismiss turns on the proper

characterization of a claim under the Rehabilitation Act in

Virginia. This Court is persuaded that under federal law, a

claim under the Rehabilitation Act in Virginia is best

characterized for statute of limitations purposes as a claim for

a injury to a person and that, accordingly, the two (2) year

Statute of limitations prescribed in Va. Code. Ann. Section

8.01-243(A) applies to such a claim.

eee |

B-9

Plaintiff last applied for, and was denied, readmission to the

Medical School in February of 1991. Plaintiff filed a suit in

this case on April 23, 1992. Plaintiff's cause of action under

the Rehabilitation Act, therefore, is timely filed under the two

(2) year statute of limitations applicable to such actions in

Virginia and the defendant's motion to dismiss is DENIED.

In the event that its motion to dismiss Count I was denied,

defendant asked this Court to strike plaintiff's request for

compensatory and punitive damages, as well as his jury

demand, under Count I. See Fed.R.Civ.P.12(f). In light of

both the Fourth Circuit's decision in Eastman and plaintiff's

lack of opposition, the Court GRANTS defendant's motion to

strike plaintiff's request for compensatory and punitive

damages, as well as his jury demand under Count I.

B. Count II

Count II of plaintiff's complaint attempts to state a claim for

breach of contract between plaintiff and the Medical School.

Defendant moves this Court for a More Definite Statement with

regard to Count II. After reviewing Count II as pleaded, the

Court finds that plaintiff's allegations are conclusory and

factually deficient, and the defendant's motion is therefore

GRANTED. Plaintiff must, therefore, within eleven (11) days

of the entry of this Order, file a more definitive statement

which advised the defendant of the factual basis for the creation

of a contract and of the policies and procedures alleged to

constitute the terms of the contract in Count II. See

Fed.R.Civ.P.12(e).’

3. Defendant has also moved to strike plaintiff's claims for compensatory

and punitive damages from Count II. Plaintiff, in his brief, denies claiming

such damages in Count II. Plaintiff does agree, however, that defendant's

argument that such relief is unavailable in claims for emotional distress

arising from a breach of contract claim is “well taken." Since this Court

has ordered plaintiff to make a more definitive statement with regard to

Count II, it is not necessary to decide this motion at the present time.

B-10

CONCLUSION

Defendant's Motion to Dismiss Count I of plaintiff's

complaint as time-barred is DENIED. Defendant's Motion to

Strike Plaintiff's prayer for compensatory and punitive damages

as well as trial by jury as to Count I of plaintiff's complaint is

GRANTED. Defendant's Motion for a More Definitive

Statement as to Count II of plaiNtiff's complaint is GRANTED.

Finally, defendant's Motion to Strike plaintiff's claims for

compensatory and punitive damages as to Count II is deferred

pending the filing of the More Definitive Statement.

The clerk is directed to mail copies of this Order to all

counsel of record.

It is so ORDERED.

Enter:

United States District Judge

At Norfolk, Virginia

July 29th, 1992

C-1

APPENDIX C

UNITED STATES COURT GF APPEALS

FOR THE FOURTH CIRCUIT

FILED

August 24, 1993

No. 92-2275

CA-92-319

CHRISTOPHER WOLSKY,

Plaintiff-Appellee

Me

MEDICAL COLLEGE OF HAMPTON ROADS,

formerly known as Eastern VA Medical

Authority, formerly known as Norfolk

Area Medical Center Authority

Defendant-Appellant

On Petition for Rehearing with Suggestion for Rehearing In

Banc

The appellee's petition for rehearing and suggestion for

rehearing in banc were submitted to this Court. As no member

of this Court or the panel requested a poll on the suggestion for

rehearing in banc, and

C-2

As the panel considered the petition for rehearing and is of

the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and

suggestion for rehearing in banc are denied.

For the Court,

/s/ Bert M. Montague

Clerk

D-1

APPENDIX D

STATUTORY PROVISIONS INVOLVED

42 U.S.C. §1981. Equal Rights Under The Law.

(a) 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.

42 U.S.C. §1983. Civil Action For Deprivation Of Rights.

Every person who, under color of any statute, ordinance,

regulation, custom, or usage of any State of Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress. For the purposes of this

section, any Act of Congress applicable exclusively to the

District of Columbia shall be considered to be a statute of the

District of Columbia.

42 U.S.C. §1988. Proceedings In Vindication of Civil

Rights; Attorney’ Fees

The jurisdiction in civil and criminal matters conferred on

the district courts by the provisions of this Title, and of Title

"CIVIL RIGHTS," and of Title "CRIMES," for the protection

of all persons in the United States in their civil rights, and for

their vindication, shall be exercised and enforced in conformity

D-2

with the laws of the United States, so far as such laws are

Suitable to carry the same into effect; but in all cases where

they are not adapted to the object, or are deficient in the

provisions necessary to furnish suitable remedies and punish

offenses against law, the common law, as modified and

changed by the constitution and statutes of the State wherein the

court having jurisdiction of such civil or criminal cause is held,

so far as the same is not inconsistent with the Constitution and

laws of the United States, and shall be extended to and govern

the said courts in the trial and disposition of the cause, and, if

it is of a criminal nature, in the infliction of punishment on the

party found guilty. In any action or proceeding to enforce a

provision of sections 1981, 1982, 1983, 1985 or 1986 of this

title, title IX of Public Law 92-318, or title VI of the Civil

Rights Act of 1964, the court, in its discretion, may allow the

prevailing party, other than the United States, a reasonable

attorney's fee as part of the costs. C

R.S. §722; Pub.L. 94-559, §2, Oct. 19, 1976, 90 Stat. 2641;

Pub.L. 96-481, Title II, §205(c), Oct. 21, 1980, 94 Stat. 2330.

29 U.S.C. §794. Nondiscrimination Under Federal

Grants and Programs; Promuigation of Rules and Regulations.

No otherwise qualified handicapped individual in the United

States, as defined in section 706(7) of this title, shall, solely by

reason of his handicap, be excluded from the participation in,

be denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal financial

assistance or under any program or activity conducted by any

Executive agency or by the United States Postal Service. The

head of each such agency shall promulgate such regulations as

may be necessary to carry out the amendments to this section

made by the Rehabilitation, Comprehensive Services, and

Developmental Disabilities Act of 1978. Copies of any

D-3

proposed regulation shall be submitted to appropriate

authorizing committee of the Congress, and such regulation

may take effect no earlier than the thirtieth day after the date

on which such regulation is so submitted to such committees.

(Pub.L. 93-112, Title V §504, Sept. 26, 1973, 87 Stat. 394;

Pub.L. 95-602, Title I, §§119, 122(d)(2), Nov. 6, 1978, 92

Stat. 2982, 2987).

1. Section 51.5-40 of the Virginia Rights of Persons With

Disabilities Act, provided in relevant part:

§51.5-40. Nondiscrimination under state grants and

programs. - No otherwise qualified person with a disability

shall, on the basis of disability, be excluded from participation

in, be denied the benefits of, or be subjected to discrimination

under any program or activity receiving state financial

assistance or under any program or activity conducted by or on

behalf of any state agency. The Board for the Rights of

Virginians With Disabilities shall promulgate such regulations

as may be necessary to implement this section. Such

regulations shall be consistent, whenever applicable, with

regulations imposed under the federal Rehabilitation Act of

1973, as amended. (1985, c.421, §51.01-40; 1990, c. 458.)

§51.5-42. Discrimination against qualified persons

with disabilities by educational institutions prohibited.

A. No public educational institution or private educational

institution which is a recipient of state funds, or agent of either,

shall deny admission to the institution, or full and equal access

to and enjoyment of any of its educational or extracurricular

programs, to an otherwise qualified person with a disability

D-4

who meets the requirements for admission to the institution or

the programs, because of such disability.

B. This section shall not apply to any public or private

educational institution which is subject to the requirements of

§22.1-215 nor to any private elementary or secondary school,

or college or university which is not a recipient of state funds.

(1985, c. 421, §51.01-42.)

§51.5-46. Remedies. A. Any circuit court having chancery

jurisdiction and venue pursuant to Title 8.01, on the petition of

any person with a disability, shall have the right to enjoin the

abridgement of rights set forth in this chapter and to order such

affirmative equitable relief as is appropriate and to award

compensatory damages and to award to a prevailing party

reasonable attorney's fees, except that a defendant shall not be

entitled to an award of attorney's fees unless the court finds

that the claim was frivolous, unreasonable or groundless, or

brought in bad faith. Compensatory damages shall not include

damages for pain and suffering. Punitive or exemplary

damages shall not be awarded.

B. An action may be commenced pursuant to this section any

time within one year of the occurrence of any violation of

rights under this chapter. However, such action shall be

forever barred unless such claimant or his agent, attorney or

representative has commenced such action or has filed by

registered mail a written statement of the nature of the claim

with the potential defendant or defendants within 180 days of

the occurrence of the alleged violation. Any liability for back

pay shall not accrue from a date more than 180 days prior to

the filing of the notice or bill of complaint and shall be limited

to a total of 180 days, reduced by the amount of other earnings

over the same period.

D-5

C. The relief available for violations of this chapter shall be

limited to the relief set forth in this section.

D. In any action in which the petitioner is represented by the

Department for Rights of Virginians With Disabilities or the

Attorney General's office, no attorneys’ fees shall be awarded,

nor shall the Department for Rights of Virginians With

Disabilities have the authority to institute any class action under

this chapter. (1985, c. 421, §51.01-46; 1990, c. 458)

Article 3.

Personal Actions Generally.

§ 8.01-243. Personal action for injury to person or property

generally; extension in actions for malpractice against health

care provider.

A. Unless otherwise provided in this section or by other

statute, every action for personal injuries, whatever the theory

of recovery, and every action for damages resulting from

fraud, shall be brought within two years after the cause of

action accrues.

B. Every action for injury to property, including actions by

a parent or guardian of an infant against a tort-feasor for

expenses of curing or attempting to cure such infant from the

result of a personal injury or loss of services of such infant,

shall be brought within five years after the cause of action

accrues.

C. The two-year limitations period specified in subsection A

shall be extended in actions for malpractice against a health

care provider as follows:

D-6

1. In cases arising out of a foreign object having no

therapeutic or diagnostic effect being left in a patient's body,

for a period of one year from the date the object is discovered

or reasonably should have been discovered; and

2. In cases in which fraud, concealment or intentional

misrepresentation prevented discovery of the injury within the

two-year period, for one year from the date the injury is

discovered or, by the exercise of due diligence, reasonably

should have been discovered.

However, the provisions of this subsection shall not apply to

extend the limitations period beyond ten years from the date the

cause of action accrues, except that the provisions of §8.01-229

A 2 shall apply to toll the statute of limitations in actions

brought by or on behalf of a person under a disability. (Code

1950, § 8-24; 1954, c. 589; 1973, c. 385; 1977, c. 617; 1986,

cc. 389, 454, 1987, cc. 294, 645, 679.)