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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1073

## Text

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.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0800%3A1. Public record. Not legal advice.