Petition for Writ of Certiorari — Kurinsky v. United States

Supreme Court brief1995

Ask Donna

What actually matters in this document.

Text

EE PoE Aa TRIER OR PR Ni I ON NT RE OEE 3 0 OPER RTT OF cer en Beara SE Re een Se eT one eT CRA

- Supreme Court, 0.8. :

) PILED

41284 JAN 2 7 1995

N QF FiCE-OF-FHE- CLERK

In The

Supreme Court of the United States

October Term, 1994

ANDREW C. KURINSKY, JR., DONNA A. KURINSKY,

and KATHERINE A. KURINSKY, a Minor,

Petitioners,

VS.

UNITED STATES OF AMERICA, and JOSEPH L.

RAMSAK, WILLIAM D. HANN, BARRY GUMMOW,

BION ST. BERNARD, KEVIN D. BURNETT, DAN

ELVEN ESTREM, GARY L. HALL, ALBERT L.

McGINTY, JR., JAMES M. OWENS, LANCE R.

SAKURADA, and JAMES J. WHITE, individually and

as Special Agents of the Federal Bureau of Investigation,

Respondents.

Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Larry S. GORDON

(Counsel of Record)

Grorce W. PALDA

BERKMAN, GORDON, MurRRAy,

PatDA & DEVAN

55 Public Square, Suite 2121

Cleveland, Ohio 44113

(216) 781-5245

Attorneys for Petitioners

QUESTIONS PRESENTED FOR REVIEW

I. Whether, rather than following the rule used in

civil rights actions brought under 42 U.S.C. § 1983, in

which state statutes of limitations are borrowed

pursuant to 42 U.S.C. § 1988, this Court should

recognize a uniform, four-year federal common-law rule

of limitation for the bringing of a Bivens-type action, on

consideration of the fact that a Bivens-type action

implicates only federal interests in that such an action

is directed against federal officers for claimed depriva-

tion of federal constitutional rights, and the further fact

that in its enactment of 28 U.S.C. § 1658, Congress has

established a national policy by declaring that four

years is the appropriate statute of limitations for federal

civil causes of action created by Congress for which no

correlative statute of limitations is otherwise provided.

II. Whether, if a federal common-law rule of

limitation for a Bivens-type action is not recognized by

this Court, then, upon application of Wilson v. Garcia,

471 U.S. 261 (1985), and Owens v. Okure, 488 U.S. 235

(1989), the mandated statute of limitations for a Bivens-

type action brought in a federal district court in Ohio

is four years, as provided by Ohio Revised Code

§ 2305.09(D), which pertains to actions for damages for

injury to the rights of plaintiff not otherwise enumerat-

ed in any other Ohio statute of limitations and is,

therefore, Ohio’s general personal injury statute of

limitations, rather than two years as determined by the

Court of Appeals for the Sixth Circuit by reason of its

reliance on Ohio Revised Code § 2305.10, which

provides a two-year statute of limitations for actions to

recover damages for bodily injury.

at a Ae he lb

Nise Rie we pA? AL itl ah ot i ret

elite ge

TABLE OF CONTENTS

Page No.

QUESTIONS PRESENTED FOR REVIEW ..... i

ey LF Bt \iyy 4) oy |. Se Vv

GPERTURPUEP EAIWT eke esc cecenees 2

IE os CV CASA oe Gace a bos 5 8 es 2

CONSTITUTIONAL PROVISIONS AND

iv Yuldy $i...) A) 4 | 2

STATEMENT OF THE CASE ............... 3

STATEMENT OF THE FACTS .............. 6

REASONS FOR GRANTING THE WRIT....... 9

I. The Court Should Fashion a Four Year

Federal Common-Law Rule of Limitation

for a Bivens-Type Action ............. 12

Il. The Mandated Statute of Limitations

Applicable to a Bivens-Type Action in a

Federal District Court in Ohio is Four

Years as Provided by Ohio Revised Code

et be we 4 Se ew ON 18

rh Obey has ee wed «bese 808 48 28

ili

APPENDICES

Opinion of the United States Court of Appeals

for the Sixth Circuit (August 26, 1994)

Memorandum and Order of the United States

District Court for the Northern District

of Ohio, Eastern Division (June 7, 1993)

Order of the United States District Court

for the Northern District of Ohio,

Eastern Division (June 7, 1993).......

Order of the United States Court of Appeals

for the Sixth Circuit Denying Rehearing

Cromemaer ©. TRE) ow occ eee k ene eweens

ae Cee, eS 6 er ek eee wee

ee © oo 3 nc eae eee eee

Olio Bev. Code § S3065.00 ... 2... cc cc cene

Ohio Rev. Code $ 2906.10 ...... 2222 ces

A-1

A-17

tie,

TABLE OF AUTHORITIES

Page No.

Cases

Alley v. Dodge Hotel, 163 U.S. App. D.C. 320,

SS Fe Gee Cee 6h Si ak 6s bo oe ew 21

Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics,

Ge Sas RE i cic cicaccutuss passim

Bojac Corp. v. Kutevac,

64 Ohio App. 3d 368, 581 N.E.2d 1119

GEUUNEE BENED S-0k. 8 6h bu wes eo ene as 24, 25

Browning v. Pendleton, 869 F.2d 989

(6th 1989) (en banc)......... 5,11,19,22-24,27

Carlson v. Green, 446 U.S. 14 (1980) ....... 16, 17

Cooperman v. University Surgical Assocs.,

32 Ohio St. 3d 191, 513 N.E.2d 288 (1987)... 25

Davis v. Passman, 442 U.S. 228 (1979) ......... 9

Friedman v. Estate of Presser,

929 F.2d 1151 (6th Cir. 1991) ..... 5, 9, 10, 19

Gray v. Lacke, 885 F.2d 399 (7th Cir. 1989),

cert. denied, 494 U.S. 1029(1990) ........ 22

Johnson v. Railway Express Agency, Inc.,

Gas UE. SOG CORTE oc ic accntebens nus 14

TABLE OF AUTHORITIES (CONTD)

Page No.

Lounsbury v. Jeffries, 95 F.3d 131 (2d Cir. 1994) . 23

Martin v. Adult Parole Authority, 1994 WL

66662, No. 9-93-45 (Ohio App. 3d Dist.,

March 4, 1994), m.c.0. 69 Ohio St. 3d 1489,

635 N.E.2d 43 (1994) ..---- esses 24

McSurely v. Hutchison, 823 F.2d 1002

(6th Cir. 1987), cert. denied,

485 U.S. 934 (1988) ..------- > 10, 12, 18, 19

Occidental Life Ins. Co. of California v. EEOC,

432 U.S. 355 (1977)... - eee eee 14

Owens v. Okure, 488 USS. 235 (1989) ....-- passim

Painter v. Graley, 84 Ohio App. 3d 65,

616 N.E.2d 285 (Cuy. 1992),

affd on other grounds, 70 Ohio St. 3d 377,

639 N.E.2d 51 (1994) ...---- eee r rt 26

Robertson v. Wegmann, 436 U.S. 548 (1978) .. 15, 17

Salmi v. Secretary of Health and Human Servs.,

7174 F.2d 685 (6th Cir. 1985) ..---- +s e000 6

Small v. Inhabitants of City of Belfast,

196 F.2d 544 (CA 11986) ...----- seer 21

Van Strum v. Lawn, 940 F.2d 406, fn.1

(Oth Cir. 1901)... secre cs srereresns: 23

TABLE OF AUTHORITIES (CONT'D)

Page No.

Wallis v. Pan American Petroleum Corporation,

ne Ss EE 6 oo Koes bw Se he oe 15

Weethee v. Boso, 64 Ohio App. 3d 532,

582 N.E.2d 19 (Franklin 1989),

m.c.o. 48 Ohio St. 3d 709,

SD Fee Se CRED 6c i vc vee ee es cewes 24

Wilson v. Garcia, 471 U.S. 261 (1985) . i, 10, 11, 18,

19, 21, 22

Yaklevich v. Kemp, Schaeffer & Rowe Co.,

68 Ohio St. 3d 294, 626 N.E.2d 115 (1994)... 26

Constitutional Provisions

Me RE. are ree 4, 8,9

a Re eer ae 4,8,9

Statutes, Rules, and Regulations

i ee | 6 eC ee ec eee. See CET Tee 7

Se RPE OS OEE 5 KN doe wade Wedeb aw as ee en's 2

gis te) errr rs yee rere ST ee TT eee +

TABLE OF AUTHORITIES (CONT'D)

Page No.

y Bk ee eo | err rerre rr ry eres 3,4

OO VEER ee 6 ha bos oo ea oe ee 17

MS UGA. § WS nc ccc cesas i, 2, 10, 18, 15, 18, 19

/ hin te >: Sera er a rear tes ye 3

Oe Tres on 6 5 a a oe eae os eee 5

42 US.C.§ 1983 ...... i, 5, 10-15, 17, 19-21, 23-26

43 U2. § TRG cc ne cna ses i, 2, 12, 138, 15, 17, 18

eb ee yg. were rary ee 13

OF Te. SD ov 0 5 EES Oe ea eee 7

i @ et Se ) eee eee ee ee 4

wa: ee SU. FT. Te 4k eka eek an awee ees 4

eee SR Peer rere Cer ce Tey 4

Combo Trev. Cae 6 TGR oc cect ncc wn nss 22

Cede Hew. Cote § SB0G.08 . wc ccc cee as bdovecs 24

Ohio Rev. Code § 2305.09(D) .... i, 3, 5, 11, 18, 21,

24-27

vill

TABLE OF AUTHORITIES (CONT'D)

Page No.

Ohio Rev. Code § 2305.10 .... ii, 3, 5, 9-11, 22, 24,

25, 27

creme Beew. Code 4 GOG6.41 2... kk ccc hbccan 24

Ohio Rev. Code § 2306.111 .............0c0, 24

fe eae RS es 24

Ohio Rev. Code § 2306.12 ............... 22, 25

Ondo Rev. Code § 2306.131 2... kc ccc cence 24

S. Ct. I 5 Sh ea aaa wl ok vo Wore xc ae 27

ss Es i Sa Ae es oe ee 7

Miscellaneous

Alabama Code § 6-2-38(1) (Supp. 1988) ........ 20

Colorado Rev. Stat. § 13-80-102(i) (1987) ....... 20

District of Columbia Code § 12-301(8) (1981) .... 20

North Carolina Gen. Stat. § 1-52(5) (1988) ...... 20

Wash. Rev. Code § 4.16.080(2) ............... 23

TABLE OF AUTHORITIES (CONT'D)

Page No.

Steinglass, Steven H.,

Section 1983 Litigation in the Ohio Courts:

An Introduction for Ohio Lawyers and Judges,

41 CLEVE. ST. L. REV. 407 (1993) ...... 26, 27

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1994

ANDREW C. KURINSKY, JR., et al.,

Petitioners,

-vs-

UNITED STATES OF AMERICA, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Andrew C. Kurinsky, Jr., Donna A. Kurinsky, and

Katherine A. Kurinsky, petitioners, pray that a writ of

certiorari issue to review the judgment of the United

States Court of Appeals for the Sixth Circuit entered

in this case on August 26, 1994.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Sixth Circuit reversing in part and affirming in

part the order of the United States District Court for

the Northern District of Ohio is reported at 33 F.3d 594,

and is reproduced in the appendix at A-1.

The memorandum opinion and order of the United

States District Court for the Northern District of Ohio

is reproduced in the appendix at A-17.

JURISDICTION

The judgment of the United States Court of Appeals

for the Sixth Circuit was entered August 26, 1994.

Respondent United States of America’s motion for

rehearing was denied by order of the United States

Court of Appeals for the Sixth Circuit entered Novem-

ber 1, 1994. A-34. This Court has jurisdiction, pursuant

to 28 U.S.C. § 1254(1), which provides for review of the

judgment rendered by the United States Court of

Appeals for the Sixth Circuit in this case, by grant of

a petition for a writ of certiorari.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Fourth and Fifth Amendments to the United

States Constitution, 28 U.S.C. § 1658, 42 U.S.C. § 1988,

Adie wile Re

and Ohio Revised Code §§ 2305.09(D) and 2305.10 are

involved in this case. The statutes are set out in the

appendix at A-36.

STATEMENT OF THE CASE

This case arises upon a six count complaint filed by

petitioners, Andrew C. Kurinsky, Jr., Donna A.

Kurinsky, and Katherine A. Kurinsky, a minor, in the

United States District Court for the Northern District

of Ohio on October 29, 1992. Counts I, II, and III

asserted claims brought under the Federal Tort Claims

Act ("FTCA"), 28 U.S.C. § 1346(b) and 28 U.S.C.

§§ 2671, et seq., against the United States for damages

resulting from injury to the persons of petitioners and

destruction of their property, in part arising out of the

search of their business premises, and the seizure and

handling of their property by F.B.I. agents on March 29,

1989, in the execution of a search warrant. Petitioners’

property was ultimately placed in storage and detained

by the F.B.I. until some, but not all of it, was returned

to petitioners in damaged condition more than a year-

and-a-half after the search and seizure, without an

indictment or information ever having issued against

petitioners.

Counts V and VI of the complaint were Bivens-type

claims' brought against twelve individually named

F.B.1. agents,’ the individual respondents in this

petition, who were alleged to have acted negligently and

maliciously toward petitioners in the investigation and

in the execution of the search warrant and the seizure

and detention of petitioners’ property, for which

petitioners suffered injuries, all in violation of their

Fourth and Fifth Amendment rights.

The District Court’s jurisdiction of the FTCA claims

was predicated on 28 U.S.C. § 1346(b), and the Bivens

claims were within the District Court’s jurisdiction

under 28 U.S.C. § 1331, being claims arising under the

Fourth and Fifth Amendments to the United States

Constitution.

On separate motions brought by the United States

pursuant to Fed. R. Civ. P. 12(b\(1), and by the F.B.I.

agents as a group, for dismissal of the complaint

pursuant to Fed. R. Civ. P. 12(b)(1) and (6) or, in the

alternative, for summary judgment under Fed. R. Civ.

P. 56(b), the District Court found that the FTCA claims

were barred by the exception to the Act’s waiver of

1 Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971).

The claim against one agent was abandoned in

the district court.

sovereign immunity contained in 28 U.S.C. § 2680(c)

and dismissed the complaint against the United States.

The District Court dismissed the Bivens claims

upon a finding that they were not brought within the

two year limitations period for the bringing of a Bivens

action as established by the Sixth Circuit in Friedman

v. Estate of Presser, 929 F.2d 1151 (6th Cir. 1991), in

which the Sixth Circuit followed its decision in Brown-

ing v. Pendleton, 869 F.2d 989 (6th 1989) (en banc). In

Browning v. Pendleton, the Sixth Circuit, construing

Owens v. Okure, 488 U.S. 235 (1989), held that Ohio’s

two-year statute, Ohio Rev. Code § 2305.10, applied to

an action brought under 42 U.S.C. § 1983.

On appeal from the District Court’s orders, the

United States Court of Appeals for the Sixth Circuit

held that the exception to the FTCA contained in 28

U.S.C. § 2680(c) that was relied upon by the Govern-

ment and applied by the District Court was not

applicable on the facts in this case and reversed the

District Court’s dismissal of petitioners’ claims against

the United States.

With regard to the Bivens claims, however, the

Court of Appeals panel found that it was precluded from

applying Ohio’s four-year general personal injury

statute of limitations, Ohio Rev. Code § 2305.09(D), as

petitioners urged was mandated by Owens v. Okure,

because another panel in Friedman v. Estate of Presser,

supra, had held Ohio’s two-year statute applied. Under

a decisional rule of the Sixth Circuit in Salmi uv.

Secretary of Health and Human Servs., 774 F.2d 685,

689 (6th Cir. 1985), a subsequent panel cannot overrule

a decision announced by another panel on the same

issue. The panel, therefore, affirmed the District

Court’s order dismissing the complaint against the

respondent F.B.I. agents. The Sixth Circuit panel

indicated, however, that even if it were disposed to

consider favorably the merit of petitioners’ argument,

the panel was, for the reason stated, prevented from

doing so, and appeared to invite petitioners to seek en

banc review of the issue. App. A-15, 33 F.2d at 599.

Petitioners so moved the court. Their motion, however,

was denied. App. A-34.°

Petitioners seek review by writ of certiorari from

this Court.

STATEMENT OF THE FACTS

Petitioners’ own and have operated since prior to

March 29, 1989, a business situated in Maple Heights,

3 Respondent United States of America also moved

for rehearing and suggested en banc review of the FTCA

issue, but rehearing before the panel and en banc

review was denied. App. A-34.

Ohio, known as Arcade Sound,‘ which manufactures,

recycles, repairs and distributes cable television

equipment and related electronic equipment.

The Federal Bureau of Investigation conducted a

long-term investigation and surveillance of petitioners’

business in connection with a criminal investigation of

petitioner Andrew Kurinsky undertaken with the

assistance of the National Cable Television Association.

The predicate of the investigation was Andrew

Kurinsky’s suspected violation of Title 47, United States

Code, § 553(a)(2) (Unauthorized Reception of Cable

Service), and Title 18, United States Code, § 1343 (Wire

Fraud).

On or about March 27, 1989, respondent J oseph L.

Ramsak, a special agent of the F.B.I. ("Ramsak"), set

out the results of the F.B.I.’s investigation in an

affidavit and application for a search warrant he

presented to a Magistrate Judge for the United States

District Court for the Northern District of Ohio, who on

that date issued a warrant for the search of petitioners’

business premises and seizure of the property described

in the warrant. The warrant was executed on March

29, 1989, by Ramsak and eleven other F.B.I. agents, ten

* Arcade Sound is not a corporation and therefore

has no parent or subsidiary. Rule 29.1, Supreme Court

Rules.

of whom, in addition to Ramsak, are respondents in this

case.

In their complaint filed in the district court on

February 16, 1993, and thereafter amended, petitioners

alleged claims at Counts V and VI arising out of the

individual respondents’ negligent, careless and mali-

cious investigation, execution of the warrant, search of

petitioners’ premises, and in their loss of some and

damage to much of petitioners’ seized property, a

portion of which property was returned in even more

damaged condition, resulting in injury to petitioners,

in violation of their rights under the Fourth and Fifth

Amendments.

Petitioners’ amended complaint and an affidavit of

petitioner Andrew Kurinsky affirmed those allegations,

attested to other acts of the individual respondents,

described the manner in which all of petitioners’

business inventory, which was in various stages of

manufacture or repair, or which had been recently

received at the search premises and was unopened, or

which had been boxed, packaged and sealed for ship-

ment and whose contents were not readily discernable,

were seized, together with their business records and

computer equipment, and recounted the reckless

manner in which the inventory was seized and thrown

into boxes by the individual respondents without any

regard whatever to the damage then being done by

them to the equipment.

In addition to their claims for damage to their

property, petitioners asserted claims for injury to their

persons by reason of emotional distress alleged to have

been suffered as the direct and proximate result of the

respondents’ conduct described in the amended com-

plaint.

The District Court found, as noted in the Statement

of the Case, upon the authority of Friedman v. Estate

of Presser, 929 F.2d 1151 (6th Cir. 1991), that Ohio’s

two-year statute of limitations contained in Ohio Rev.

Code § 2305.10, which is one of Ohio’s several personal

injury statutes of limitations, barred the Bivens claims,

and, therefore, dismissed these claims. Memorandum,

A-29. The Court of Appeals affirmed upon the same

authority.

REASONS FOR GRANTING THE WRIT

In Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971), this

Court first recognized the right of an individual to

recover damages directly from a federal agent who while

acting under color of federal authority violated rights

of the individual guaranteed under the Fourth Amend-

ment. In Davis v. Passman, 442 U.S. 228 (1979), the

right of action was extended to embrace an action for

damages resulting from a denial of due process guaran-

teed under the Fifth Amendment. Although the Court

created what has come to be referred to as a Bivens-

type, or Bivens action, the Court did not then, and has

not since, addressed the issue of what statute of

limitations is applicable to such actions.

In McSurely v. Hutchison, 823 F.2d 1002, 1005 (6th

Cir. 1987), cert. denied, 108 S. Ct. 1107 (1988), the Sixth

Circuit determined that the rule of Wilson v. Garcia,

471 U.S. 261 (1985), directing federal courts to deter-

mine a statute of limitations for a 42 U.S.C. § 1983

cause of action (which statute contained no statute of

limitations) by borrowing the most appropriate state

personal injury statute of limitations, would be applied

to a Bivens action that had been transferred to the

United States District Court for the Western District

of Kentucky. In Friedman v. Estate of Presser, 929 F.2d

1151, 1158-59 (6th Cir. 1991), the Sixth Circuit, with

no discussion of which Ohio personal injury statute of

limitation should be applied, extended its reliance on

borrowing the state’s statute of limitations to a Bivens

action filed in Ohio, by holding that the two-year

limitation in Ohio Rev. Code § 2305.10 applied.

In reaching its decision in Friedman v. Presser, the

Court of Appeals did not pause to consider (a) whether

Ohio Rev. Code § 2305.10 was indeed the applicable

Ohio statute to be applied under Owens v. Okure, 488

U.S. 235 (1989), or (b) whether in view of the enactment

of 28 U.S.C. § 1658, which establishes a four-year

statute of limitations for civil actions created by acts of

Congress but for which no statute of limitations is

;

provided, it was any longer necessary to borrow an

appropriate state statute.

This case squarely presents the Court with the

opportunity to consider whether it is appropriate for a

federal court to borrow a state statute of limitations for

a Bivens action. If the Court were to conclude that such

borrowing is not appropriate, the Court would be

unconstrained from establishing a uniform, federal

common-law rule of limitation for a Bivens action.

If the Court, however, were to conclude that the

rule of Wilson v. Garcia is applicable to a Bivens action,

then petitioners entreat the Court to review the decision

of the court below, and those other decisions of the

Sixth Circuit upon which it relies, to determine whether

the Ohio statute of limitations borrowed by the Sixth

Circuit is the statute mandated by Owens v. Okure to

be applied to § 1983 and Bivens actions brought in

federal district courts in Ohio.

The latter issue is particularly acute in view of the

fact that at least three intermediate Ohio appellate

courts that have considered the issue, as well as an

esteemed commentator who has examined the issue in

depth, have concluded that a § 1983 action brought in

Ohio is subject to the four-year general statute of

limitations contained in Ohio Rev. Code § 2305.09(D),

rather than the two-year statute, Ohio Rev. Code

§ 2305.10 selected by the Sixth Circuit in Browning v.

Pendleton, 869 F.2d 989 (6th Cir. 1989). If the Court

were to agree, then petitioners’ Bivens action would,

under the rule of McSurely v. Hutchison, be found to

have been timely filed.

I. THE COURT SHOULD FASHION A

FOUR YEAR FEDERAL COMMON-LAW

RULE OF LIMITATION FOR A BIVENS-

TYPE ACTION.

The practice of borrowing the most analogous or

most appropriate state statute of limitations to be

applied to an action created by Congress and for which

action no statute of limitations was provided is well

established. This procedural practice is particularly

well-rooted with regard to civil rights actions brought

under 42 U.S.C. § 1983. Here the impetus for borrow-

ing the most analogous state statute arises from

Congress’ express directive in 42 U.S.C. § 1988 that

where federal law is found to be deficient in providing

the suitable remedy for a congressionally recognized

civil rights action, the district courts shall apply:

... the common law, as modified and

changed by the constitution and statutes

of the State wherein the court having

jurisdiction of such civil ... cause is held,

so far as the same is not inconsistent

with the Constitution and laws of the

United States....

Id., 42 U.S.C. § 1988(a) (emphasis added). Thus, the

inquiry in § 1983 actions has always been not whether

to borrow, but rather what statute or statutes should

be borrowed, which question spawned endless debate

until seemingly put to rest by Wilson v. Garcia, 471

U.S. 261 (1985), only to be reexamined and finally

resolved by Owens v. Okure, 488 U.S. 235 (1989).

A Bivens-type action, however, having been created

by this Court rather than Congress, is not centrolled by

the directive contained in § 1988. And although there

may at one time have been good cause to follow the

procedure dictated by § 1988 with regard to a § 1983

action in the determination of the statute of limitations

for a Bivens action, upon the enactment of 28 U.S.C.

§ 1658 as part of the Judicial Improvement Act of 1990

(Pub. L. No. 101-650), the foundation for adherence to

the rule of Wilson and Owens evaporated. For where

there previously had been no statement of a national

policy on which statute of limitations should be applied

to a congressionally created civil cause of action for

which no correlative statute of limitations was provided,

§ 1658, in providing for a four-year statute of limita-

tions for such actions, filled the void. Henceforth,

Congress declared in its enactment of § 1658, a plaintiff

shall be afforded four years within which to bring suit

on his federally-created action.

It is beyond dispute that adherence to a rule which

subjects Bivens plaintiffs to a wide range of state

statutes of limitations results in disparate treatment

of the same federal cause of action. Even the District

Court in this case was constrained to comment that

"reliance on a state’s statute of limitations for Bivens

claims results in inconsistent, and often discriminatory,

treatment of plaintiffs in different states." App. at A-

31.

In the borrowing of an analogous state statute, even

in the context of a borrowing for a § 1983 action, the

admonition of Justice Marshall in Owens v. Okure that

such borrowed statute be "consistent with federal law

and policy[ ] Occidental Life Ins. Co. of California v.

EEOC, 432 U.S. 355, 367 (1977); Johnson [v. Railway

Express Agency, Inc., 421 U.S. 454 (1975)] at 465,"

Owens, 488 U.S. at 239, should not be disregarded.

This case is an example of just such an inconsistency

and serves to prove the rule advocated by petitioners.

Here, the Court of Appeals has applied a two-year

statute of limitations to a Bivens action brought in a

federal court in Ohio. Unless the Court of Appeals’

decision is held to be in error for misapplication of the

mandate of Owens v. Okure, as argued below by

petitioners, we are confronted with the anomalous

situation of applying a two-year statute of limitations

to a federal cause of action which has no correlative

statute of limitations, in defiance of a Congress’

pronouncement that such actions, admittedly those

Te ne DE egies

congressionally created, be subjected to a four year

statute of limitations.

In approaching the question of whether it should

recognize a federal common law rule, the Court in the

past has focused on whether "there is a federal statute

dealing with the general subject," Wallis v. Pan

American Petroleum Corporation, 384 U.S. 63, 69

(1966), and whether there exists "a significant conflict

between some federal policy or interest and the use of

state law." Id. at 68.

That a national policy exists on the issue of the

appropriate statute of limitations on a federal cause of

action for which no specific statute of limitation has

been provided cannot be denied. That a "significant

conflict" exists between the Ohio statute and the federal

policy as expressed in § 1658 likewise cannot be denied.

The state statute should be avoided.

There simply is no need for resort to state statutes

of limitations where a federal statute already exists.

This is especially so, where resort to the state statute

yields an inconsistency not tolerable under § 1988. As

Justice Blackmun observed in his dissent in Robertson

v. Wegmann, 436 U.S. 548, 596 (1978), from the Court’s

readiness to borrow Louisiana’s statute on survival of

actions to determine whether the prosecution of a

§ 1983 action commenced by plaintiff's decedent should

be abated, rather than adopt a federal common-law rule

on the issue:

The federal law and the underlying

federal policy stand bright and clear.

And in light of that brightness and of

that clarity, I see no need to resort to the

myriad to state rules governing the

survival of state actions.

Thus, in Carlson v. Green, 446 U.S. 14 (1980), the

issue related to which law governed the determination

of the survival of the action: the state law, which would

have abated decedent’s administratrix’s Bivens action

arising out of defendants’ conduct which allegedly

caused decedent’s death, or the federal common law,

which presumably would have permitted the action to

survive. The Court held that despite the fact that there

was no federal statutory right recognizing the survival

of the action, the Court would fashion a common-law

rule of survival of the action so that the Bivens right of

action, and all that is inherent in that right of action,

would be vindicated. In so holding, Justice Brennan

distinguished a Bivens action from an action brought

under the Federal Tort Claims Act, which is dependent

on the existence of a state right of action, and stated

that the need for uniform rules to redress constitutional

violations was obvious:

[I]t is obvious that the liability of federal

officials for violations of citizens’ consti-

tutional rights should be governed by

uniform rules. . . . The question of

whether respondent’s action for viola-

tions by federal officials of federal consti-

tutional rights should be left to the

vagaries of the laws of the several States

admits of only a negative answer in the

absence of a contrary congressional

resolution.

Id., 446 U.S. at 23. Justice Brennan distinguished

Carlson from Robertson by noting, inter alia, that

whereas § 1988 operated asa compulsion to the Court’s

decision in Robertson, which was a § 1983 action, § 1988

did not by its "terms apply to Bivens actions”, and that

there were "no cogent reasons to apply it to such actions

even by analogy." Carlson, 446 U.S. at 24, f. 11. Nor

did the Rules of Decision Act, 28 U.S.C. § 1652, as

contended by now Chief Justice Renquist in dissent, Id.,

466 US. at 43, bar the Court’s formulation of the

federal common-law rule.

The case at bar presents as compelling a basis for

the fashioning of a federal common law rule of limita-

tion. In Carlson, the Court acted to formulate a federal

common law rule to preserve the efficacy of the Bivens

action which filled the interstices of the gap between it

and the companionate FTCA action. Petitioners here

seek a rule which will also protect the efficacy of their

Bivens action, and which will do so in a manner wholly

consistent with declared congressional policy on the

issue.

In this case, there is "no need" to resort to state

statutes. The Court, in considering the applicable

statute of limitations for a Bivens action, is not as

Justice Brennan noted, subject to the borrowing

directive of § 1988. It is, however, to be guided by

Congress’ declaration of a national policy, through

Congress’ enactment of § 1658, relating to the length

of time that must be afforded a plaintiff to commence

a federal action for which a limitation that would bar

it is not otherwise provided. The federal common-law

rule espoused will be employed in aid of an action

brought to redress a federal constitutional deprivation,

not a mere tort founded on state law.

The fashioning of a federal common-law rule of

limitation for Bivens-type actions is a salutary step that

this Court should take. The current disparity of

treatment of Bivens plaintiffs, and defendants as well,

should be ended.

Il. THE MANDATED STATUTE OF

LIMITATIONS APPLICABLE TO A

BIVENS-TYPE ACTION IN A FED-

ERAL DISTRICT COURT IN OHIO

IS FOUR YEARS AS PROVIDED BY

OHIO REVISED CODE § 2305.09(D).

The question of the appropriate statute of limita-

tions in a Bivens-type case was presented to the Sixth

Circuit for the first time in McSurely v. Hutchison, 823

F.2d 1002 (6th Cir. 1987), cert. denied, 485 U.S. 934

(1988). The Court of Appeals had little difficulty in

ak al Y Raa eee tab De oY tee

ities aw hob Nit Abend ves Wa labia haley iat Side

concluding that because a Bivens action was analogous

to a § 1983 action, the rule of Wilson v. Garcia should

be applied, and that Kentucky’s one-year statute of

limitations for "injury to the person of the plaintiff,”

rather than the state’s five year statute for "an action

for an injury to the rights of plaintiff... not otherwise

enumerated," was the most appropriate statute to be

applied to the Bivens action. Id. 823 F.2d at 1005. The

court rejected as unpersuasive the plaintiffs contention

that a Bivens action was not a congressional enactment

as was the § 1983 action in Wilson, and held that the

similarities between the two actions warranted follow-

ing Wilson in determining the applicable statute of

limitations.

Thereafter, when the Sixth Circuit was presented

with an Ohio Bivens action, as it was seven years later

in Friedman v. Estate of Presser, supra, the court,

without discussion and without considering that

Congress had enacted 28 U.S.C. § 1658 subsequent to

McSurely, summarily declared that the statute of

limitations in a Bivens action brought in a federal court

sitting in Ohio was two years on application of the

court’s decision in Browning v. Pendleton, 869 F.2d 989

(6th Cir. 1989). In so holding, the court compounded

its misreading of Owens v. Okure, and this Court’s clear

directive given in that case for determining which Ohio

statute of limitations should be borrowed in a § 1983

action.

In Owens v. Okure, the Court held that where a

state had multiple statutes of limitations for personal

injury actions, a court considering which statute was

applicable to a § 1983 action should "borrow the general

or residual statute for personal injury actions." Id. at

250. (Emphasis supplied). Justice Marshall, speaking

for a unanimous Court in Owens, included important

explanatory footnotes in his opinion that apply to the

selection of the correct Ohio statute in a § 1983 action.

In footnotes 9 and 10, Justice Marshall gave examples

of what he referred to as a state’s "general" provision

for personal injury actions, and a state’s “residual’

provision for personal injury actions. He cites as

representative of "general" personal injury provisions

Alabama Code § 6-2-38(1) (Supp. 1988), pertaining to

"[A]ny injury to the person or rights of another not

arising from contract and not specifically enumerated,"

and North Carolina Gen. Stat. § 1-52(5) (1988), "[A]ny

other injury to the person or rights of another, not

arising on contract and not hereafter enumerated.” Id.

at 580, fn. 9. At footnote 10, District of Columbia Code

§ 12-301(8) (1981), and Colorado Rev. Stat. § 13-80-

102(i) (1987), are cited as representative of a state’s

"residual" provision, which applies "to all actions not

specifically provided for, including personal injury

actions.” Id. at 580.

Justice Marshall further explained:

Our decision today is fully consistent

with Wilson’s rejection of a state residu-

al, or "catch-all," limitations provision as

the appropriate one for Section 1983

actions. 471 U.S. at 278, 105 S.Ct. at

1948. In Wilson, we rejected recourse to

such provisions in the first instance, a

position we continue to embrace. Courts

should resort to residual statutes of limi-

tations only where state law provides

multiple statutes of limitations for per-

sonal injury actions and the residual one

embraces, either explicitly or by judicial

construction, unspecified personal injury

actions. See, e.g., Small v. Inhabitants

of City of Belfast, 796 F.2d 544(CA 1

1986) (construing Maine’s catch-all

statute as the general personal injury

provision); Alley v. Dodge Hotel, 163 U.S.

App. D.C. 320, 501 F.2d 880 (1974) (per

curiam) (construing District of

Columbia’s catch-all statute as the gen-

eral personal injury provision).

Id. at 251, fn. 12 (emphasis supplied).

Petitioners contend that under the Ohio statutory

scheme, the general statute of limitations for

unenumerated personal injury actions, and that statute

which under Owens should be applied to § 1983 and

Bivens claims, is Ohio Revised Code § 2305.09(D), which

provides, in pertinent part:

lah A oan BI. oy

An action for any of the following causes

shall be brought within four years after

the cause thereof accrued:

* * * *

(D) For an injury te the rights

of the plaintiff not arising

on contract nor enumerated

in $$ 2305.10 to 2305.12,

inclusive, and 1304.29 of

the Revised Code.

(Emphasis supplied). Ohio Revised Code § 2305.10, the

statute selected by the Sixth Circuit in Browning v.

Pendleton, provides, in pertinent part:

An action for bodily injury or injuring

personal property shall be brought

within two years after the cause thereof

arose.

Examples of the selection of general or residual

state personal injury statutes of limitations wholly

consistent with the doctrine of Owens v. Okure are

found in Gray v. Lacke, 885 F.2d 399, 407-08 (7th Cir.

1989), cert. denied, 494 U.S. 1029 (1990), (Wisconsin’s

six year catch-all statute of limitations, covering all

actions for damages "for injury to character or rights of

another, not arising under contract ... except where a

different period is expressly prescribed," held applicable

under Wilson, rather than Wisconsin’s three year

statute covering claims "for injuries to the person"), and

Van Strum v. Lawn, 940 F.2d 406, 407-09, fn.1 (9th Cir.

1991) (clarifying that the Washington catch-all statute

it had selected as the applicable statute, Wash. Rev.

Code § 4.16.080(2), which covered "any other injury to

the person or rights of another not herein enumerated",

was really Washington’s general personal injury

statute).

This issue was most recently considered by the

Second Circuit Court of Appeals in Lounsbury v.

Jeffries, 25 F.3d 131 (2d Cir. 1994), in which the court,

in determining which of Connecticut’s multiple personal

injury statutes of limitations applied to a § 1983 action,

distilled the issue by stating that the "pivotal question"

under Owens is:

.. What state statute of limitations

applied to unenumerated personal injury

claims.

Id., at 134, and upon application of that test reversed

the district court’s selection of Connecticut’s two-year

statute for personal injury actions arising upon negli-

gence or from reckless or wanton misconduct, in favor

of a three-year statute for actions founded upon tort,

which the court concluded must be recognized under

Owens as Connecticut's general tort statute of limita-

tions.

In view of the foregoing considerations, it is difficult

to understand how or why the Sixth Circuit concluded

as it did in Browning v. Pendleton that Ohio’s two-year

statute of limitations applied to a § 1983 action filed in

a federal court in Ohio. Ohio has at least six statutes

of limitation relating to personal injury actions.”

Petitioners speculate that the answer lies in the fact

that in Browning the court never considered

§ 2305.09(D).® Inasmuch as Browning was decided by

a unanimous en banc court, plaintiffs such as petition-

ers have met with no success in their attempts to

reconvene the court to reconsider or to consider anew

its Browning decision.

At least three Ohio appellate courts, however, have

construed Owens to mandate the application of Ohio

Revised Code § 2305.09(D) to § 1983 actions brought in

Ohio courts on causes of action that accrued in Ohio.

Bojac Corp. v. Kutevac, 64 Ohio App. 3d 368, 581

N.E.2d 1119 (Trumbull 1990), Weethee v. Boso, 64 Ohio

App. 3d 532, 582 N.E.2d 19 (Franklin 1989), m.c.o. 48

Ohio St. 3d 709, 550 N.E.2d 482 (1990) and Martin v.

Adult Parole Authority, 1994 WL 66662, No. 9-93-45

(Ohio App. 3d Dist., March 4, 1994), m.c.o. 69 Ohio St.

5 See Ohio Revised Code §§ 2305.09, 2305.10,

2305.11, 2305.111, 2305.112 and 2305.131.

® See Judge Milburn’s statement in Browning:

"The question before us is whether the appropriate

statute of limitations for § 1983 actions arising in Ohio

is contained in Ohio Rev. Code Ann. § 2305.11...or Ohio

Rev. Code Ann. Section 2305.10." Id., 869 F.2d at 990.

3d 1489, 635 N.E.2d 43 (1994). In Bojac, the court

concluded:

It is clear that appellant’s claim under

Section 1983 does not fit into any of the

categories of R.C. 2305.10 through

2305.12. It must, therefore, fall within

the general or residual statute for per-

sonal injury actions, which is R.C.

2305.09(D). This is the most logical and

appropriate result based on the United

States Supreme Court holding in Owens

vu Okure, supra.

64 Ohio App. 3d at 370 (emphasis added). Although

these decisions had no compelling precedential effect on

the court below, the views of these Ohio appellate courts

construing Ohio statutes and which recognize

§ 2305.09(D) as the applicable statute of limitations

were deserving of some consideration, but by reason of

the necessity for en banc review, the request for which

was denied petitioners, the import of these Ohio cases

was not addressed below.

The disharmony between Ohio courts, which have

concurrent jurisdiction,’ and federai district courts in

Ohio in adjudicating § 1983 actions that accrue in Ohio,

" The Supreme Court of Ohio has established that

an Ohio common pleas court has jurisdiction to hear a

§ 1983 damage action. Cooperman v. University

Surgical Assocs., 32 Ohio St. 3d 191, 198, 513 N.E.2d

288, 296 (1987).

on the applicable Ohio statute of limitations is trouble-

some, for it appears that an Ohio plaintiff possessing

a federally conferred § 1983 right of action may be

obliged to bring his action in a state court because the

federal court applies a more restrictive statute of

limitations on the same cause of action. Such an

anomalous circumstance should not be permitted to

deny a plaintiff his federal forum.

The Ohio Supreme Count, in considering the

applicable statute of limitations for an action for abuse

of process, recently reaffirmed that § 2305.09(D)

constitutes the state’s general statute of limitations for

personal injury actions. Yaklevich v. Kemp, Schaeffer

& Rowe Co., 68 Ohio St. 3d 294, 300, 626 N.E.2d 115,

119-20 (1994). In yet another case, the Cuyahoga

County Court of Appeals has recognized that

§ 2305.09(D) is Ohio’s "general or residual statute for

personal injury actions." Painter v. Graley, 84 Ohio

App. 3d 65, 73, 616 N E.2d 285, 291 (Cuy. 1992), affd

on other grounds, 70 Ohio St. 3d 377, 639 N.E.2d 51

(1994).

Finally, petitioners’ position on this issue is

supported by Professor Steven H. Steinglass in his

recently published comprehensive article entitled

Section 1983 Litigation in the Ohio Courts: An Intro-

duction for Ohio Lawyers and Judges, 41 CLEVE. ST. L.

REV. 407, 492 (1993). Prof. Steinglass’ exegesis of the

Sixth Circuit’s selection of the two-year Ohio statute of

limitations contained in § 2305.10 closely parallels that

made by petitioners in this petition. He would have had

the Sixth Circuit select § 2305.09(D) as the appropriate

statute and, while conceding that the Sixth Circuit did

not consider this statute in Browning v. Pendleton, he

concludes that that court’s recognition of § 2305.10 as

the appropriate statute is “simply wrong.” Professor

Steinglass states:

[A] strong case can be made that the

Sixth Circuit’s adoption of the two-year

limitations period for claims involving

bodily injury is simply wrong. The

Supreme Court in Owens had required

the use of the residual personal injury

limitations period when there are multi-

ple personal injury limitations periods,

and the Court identified Ohio as an

example of a state in which multiple

limitations periods for intentional torts,

including the two-year limitations for

bodily inj-ury, made necessary the use of

the general or residual personal injury

limitations period. Thus, it is difficult to

reconcile the Sixth Circuit’s adoption of

the two-year limitations period for

claims involving bodily injury with the

Supreme Court’s decision in Owens.

41 CLEVE. ST. L. REV. at 492 (footnotes omitted).

So strong is the case here made for reversal of the

judgment of the Court of Appeals "for failure to follow

the mandate of this Court” in Owens (See S. Ct. Rule

10.1(c)) that certiorari should be granted and summary

reversal should be entered--that is, if the Court declines

to grant certiorari on petitioners’ first question present-

ed for review, concerning petitioners’ proposed federal

common-law rule of limitation for a Bivens action.

CONCLUSION

For all the foregoing reasons, petitioners respect-

fully request that a writ of certiorari be granted to the

Court of Appeals for this Court’s review of the impor-

tant questions here presented.

Respectfully submitted,

LARRY S. GORDON

(Counsel of Record)

GEORGE W. PALDA

BERKMAN, GORDON, MURRAY,

PALDA & DeVAN

Attorneys for Petitioners

January 1995

APPENDIX

No. 93-3886

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUITT

ANDREW C. KURINSKY,

JR.; DONNA A. KURIN-

SKY; and KATHERINE A.

KURINSKY, a Minor, by

and through her

parent, natural

guardian and next

friend, Andrew C.

sky, Jr.,

Plaintiffs-Appellants

Vv.

UNITED STATES OF

AMERICA, and the named :

persons each indi-

vidually and as a

Special Agent of the

Federal Bureau of In-

vestigation; JOSEPH

L. RAMSAK, WILLIAM D.

HANN;: BARRY GUMMOS: -

BION ST. BERNARD;

KEVIN D. BURNETT;

DAN ELVEN ESTREM;

GARY L. HALL; ALBERT

L. McGINTY, JR.; JAMES

M. OWENS: LANCE R. SA- :

KURADA and JAMES J.

WHITE,

Defendants-Appellants

(Decided and

Filed August 26,

1994)

Before: GUY and BOGGS, Circuit Judges; and CONTIE,

Senior Circuit Judge.

RALPH B. GUY, JR., Circuit Judge. In this Federal

Tort Claims Act ("FTCA" or "ACT") case, Andrew C.

Kurinsky, Jr.; his wife, Donna A. Kurinsky; and

Katherine A. Kurinsky, a minor, appeal the dismissal

of their action against the United States and eleven

special agents of the Federal Bureau of Investigation. '

The district court’s dismissal was grounded in the

exception found in 18 U.S.C. § 2680(c) for claims based

on the detention of goods and merchandise by law en-

forcement officers. The Kurinskys also appeal the dis-

missal of their Bivens claims against the individual

agents, which the court found were time-barred. For

the reasons that follow, we find the district court’s

reading of § 2680(c) to be in error. Therefore, we

reverse in part and affirm in part.

We summarize only those facts believed necessary

to an understanding of the issues raised on appeal.

The Kurinskys own and operate a business known

as Arcade Sound, which manufactures, recycles, repairs,

and distributes cable television equipment and related

1 The district court, in its opinion, listed twelve

agents as defendants. The "extra" agent, Linda T.

Berry, was not named in the Kurinskys’ amended

complaint, so we have not identified her as one of the

defendants on appeal.

electronic equipment. Prior to March 1989, the FBI

suspected that Andrew Kurinsky was violating 47

U.S.C. § 553(aX2), which prohibits the unauthorized

reception of cable services, and was committing wire

fraud, in violation of 18 U.S.C. § 1343. As a result, the

FBI placed Kurinsky under surveillance. On March 27,

1989, based on information supplied by the FBI, a

magistrate judge issued a search warrant for the Arcade

Sound premises. On March 29, the FBI agents executed

the search warrant and seized cable signal

descramblers, cable television converters, assorted

hardware, personal computers, numerous documents,

and two handguns. According to the Kurinsky, no

inventory of the seized goods was made while the

property was removed; the property was mishandled

and damaged; and common electronic components,

which are not unique to the cable television industry,

were taken. The Kurinskys also allege that, in the

course of the agents’ execution of the warrant, they

were subjected to great emotional distress, embarrass-

ment, and humiliation. The United States claims that

the property was returned to the Kurinskys between

April 7, 1989, and October 4, 1990. The Kurinsky claim

that not all of the property was returned.

On October 29, 1992, the Kurinskys filed a six-count

action against the United States and the FBI Agents,

alleging damages stemming from the execution of the

search warrant. Counts I, IJ, and II are brought

pursuant to the FTCA. Count IV alleges a violation of

the due process clause of the Fifth Amendment, and

counts V and VI are Bivens claims against the FBI

agents under the Fourth and Fifth Amendments.

On separate motions brought by the United States

pursuant to Fed. R. Civ. P. 12(b\(1), and by the FBI

agents as a group pursuant to Fed. R. Civ. P. 12(b)(1)

and (6) or, in the alternative, for summary judgment

under Fed. R. Civ. P. 56(b), the district court found that

the FTCA claims were barred by the exception to the

Act’s waiver of sovereign immunity contained in

§ 2680(c). The court also found that sovereign immuni-

ty barred the Fifth Amendment due process claim for

the taking of the Kurinskys’ property. Finally, the court

dismissed the Bivens claims upon a finding that they

were not brought within the two-year limitations period

for the bringing of such actions.

Il.

The FTCA provides generally that the United States

shall be liable, to the same extent as a private party,

"for injury or loss of property ... caused by the negligent

or wrongful act or omission of any employee of the

Government while acting within the scope of his office

or employment." 28 U.S.C. § 1346(b). The Act’s broad

waiver of immunity, however, is subject to enumerated

exceptions. 28 U.S.C. § 2680(a)-(n). One of those

exceptions, § 2680(c), provides that § 1346 shall not

apply to

[a]ny claim arising in respect of the assessment

or collection of any tax or customs duty, or the

detention of any goods or merchandise by any

officer of customs or excise or any other law-

enforcement officer.

The Kurinskys insist that § 2680(c) applies only to

property losses involving customs or tax agents, or other

law officers acting in the aid of the enforcement of

customs or tax laws. See Formula One Motors, Ltd. v.

United States, 777 F.2d 822, 825 (2d Cir. 1985) (Oakes,

J., concurring); A-Mark, Inc. v. United States Secret

Service, 593 F.2d 849, 851 (9th Cir. 1978) (Tang, J.,

concurring). Because the FBI’s search and seizure was

unrelated to customs or tax laws, the Kurinskys

maintain the exception does not apply here.

In the government’s view, and as the district court

found, § 2680(c) applies to exclude a claim for the

damage here because it was incurred in the course of

a search and seizure undertaken by a "federal law-

enforcement officer." According to the government,

since FBI agents are "law enforcement officers" and this

suit arose out of "the detention of [the Kurinskys’] goods

or merchandise," the district court’s order of dismissal

was not in error.

While this court has applied § 2680(c) to IRS

agents, we have yet to address its application to other

law enforcement officers. Similarly, the Supreme Court

has refused to determine whether § 2680(c) applies

where the officers who detained the property were not

customs or tax officials and were not acting in a

customs or tax capacity. See Kosak v. United States,

465 U.S. 848, 852 n.6, 104 S. Ct. 1519, 1522 n6, 79

L.Ed.2d 860 (1984). therefore, we begin our inquiry into

the scope of § 2680(c) on a clean slate.

It is well settled that the first step in determining

the meaning of a statute is to review the language of

the statute itself. United States v. Johnson, 855 F.2d

299 (6th Cir. 1988). “[O]nly the most extraordinary

showing of contrary intention from [the legislative

history] would justify a limitation on the ‘plain meaning’

of the statutory language.” Id. at 305 (quoting Garcia

v. United States, 469 U.S. 70, 75 (1984).

According to the government, the term "any other

law-enforcement officer" was included in § 2680(c) as

a sort of catch-all provision. The principle of ejusdem

generis,’ however, suggests that such a general term

2 This term is defined in BLACK’S LAW DICTIO-

NARY 464 (5th ed. 1979) as follows:

Of the same kind, class, or nature. In the

construction of laws, wills, and other instru-

ments, the “ejusdem generis rule" is, that

where general words follow an enumeration of

persons or things, by words of a particular and

specific meaning, such general words are not

to be construed in their widest extent, but are

to be held as applying only to persons or things

should be understood in light of the specific terms that

surround its. Hughey v. United States, 495 U.S. 411,

419 (1990). Similarly, under the principle of statutory

construction known as noscitur a sociis,’ a general term

in interpreted within the context of the accompanying

words "to avoid the giving of unintended breadth to the

Acts of Congress." Jarecki v. G.D. Searle & Co., 367

U.S. 303, 307 (1961). Here, the specific terms "tax" and

“customs duty" indicate that Congress was concerned

with those detentions, however they might arise,

of the same general kind or class as those

specifically mentioned. The rule, however, does

not necessarily require that the general provi-

sion be limited in its scope to the identical

things specifically named. Nor does it apply

when the context manifests a contrary inten-

tion.

(Citations omitted).

* BLACK’S LAW DICTIONARY, supra note 2, at

956, defines this term as follows:

It is known from its associates. The meaning

of a word is or may be known from the accom-

panying words. Under the doctrine of "noscitur

a sociis," the meaning of questionable words or

phrases in a statute may be ascertained by

reference to the meaning of words or phrases

associated with it.

occurring within the context of tax and customs

activities. As Judge Tang observed:

The governmental function of assessing and col-

lecting customs duties necessarily requires

some period of detention when the imported

item is inspected for purposes of evaluation. A

similar situation often arises when property

must be levied against for tax purposes. It

follows that where the ultimate act of assessing

the tax or duty is rendered exempt, the inciden-

tal activity of detention must also be protected.

§ 2680(c) contains parallel clauses which cover

"the assessment or collection of any tax or

customs duty, or the detention of any goods or

merchandise by any officer of customs or excise

or any other law-enforcement officer." The

clauses both dwell exclusively on customs and

taxes, except for the final reference to other

law-enforcement officers. The "any other law-

enforcement officer" phrase should be viewed

as Congress’ recognition of the fact that federal

officers, sometimes become involved in the

activity of detaining goods for tax or customs

purposes.

A-Mark, 593 F.2d at 850-51 (Tang, J., concurring)

(emphasis in original).

In order to interpret § 2680(c) as the government

urges, we would have to focus selectively on specific

provisions of that section without reading it in its

entirety. The Supreme Court has observed, however,

that "[w]e do not ... construe statutory phrases in

isolation; we read statutes as a whole." United States

v. Morton, 467 U.S. 822. 828 (1984). Moreover, even if

§ 2680(c) were read piecemeal, it would not convey the

meaning suggested by the government. Significantly,

Congress chose to use the word "detention" instead of

the word "seizure." A detention is generally associated

with a period of temporary custody or delay. It carries

not connotation of permanent custody, nor does it

necessarily suggest an adversarial interest insofar as

ownership is concerned. It is a term often associated

with an ongoing investigation. A seizure, on the other

hand, must be viewed as a term of art in this context.

Black’s Law Dictionary 1219 (5th ed. 1979) defines

seizure as "(t]he act of taking possession of property,

e.g., for a violation of law or by virtue of an execution."

In common with a "detention," a "seizure" may be

temporary and involve the goods of another; however,

a seizure has an "after-the-fact" quality not associated

with a detention. When goods are seized pursuant to

a lawful search, their relevance to a legal proceeding

already has been predetermined. Similarly, if goods are

seized pursuant to an execution or forfeiture, there is

no intention to return. The seizure is adversarial to the

ownership interest of the person from whom the

property is seized. Had Congress intended to except

from the reach of the FTCA damages arising out of sei-

zures, we believe it would have said so. Instead,

Congress elected to use the word detention, and to be

consistent with this language, § 2680(c) must be read

as only applying to law enforcement officers engaged in

activities with a nexus to the collection of taxes or

customs duties.

This reading is supported by what little legislative

history there is on § 2680(c). The Senate Report to the

Legislative Reorganization Act of 1946 had the following

to say about the tort claim exceptions:

This section specifies types of claim[s] which

would not be covered by the title. They include

_.. claims which relate to certain governmental

activities which should be free from the threat

of damage suit, or from which adequate reme-

dies are already available. These exemptions

cover claims arising out of the loss or mis-

carriage of postal matter; the assessment or

collection of taxes or assessments; the detention

of goods by customs officers....

A-Mark, 593 F.2d at 851 (Tang, J., concurring (quoting

S.Rep. No. 1400, 79th Cong., 2d Sess. 33 (1946)). The

report makes no mention whatsoever of an exemption

for any and all seizures by law-enforcement officers.

When Alexander Holtzoff, then Special Assistant to the

Attorney General, appeared before the Senate Subcom-

mittee weighing passage of the FTCA in 1940, he

explained:

The ... exception relates to claims arising in

respect of the assessment or collection of any

A10

tax or customs duty, or the detention of any

goods or merchandise by any officer of customs

or excise or any other law enforcement officer.

There are various tax laws providing the

machinery for recovering back any tax that has

been paid but was not properly owing. There

was no purpose in interfering with that ma-

chinery.

Formula One, 777 F.2d at 825 (Oakes, J., concur-

ringquoting Tort Claims Against the United States:

Hearings on S. 2690 Before a Subcomm. of the Senate

Comm. on the Judiciary, 76th Cong., 3d Sess. 38

(1940)). Simply put, the legislative history of the Act

is consistent with our reading of § 2680(c) and there is

no basis for departing from the "plain meaning" of the

statute.

We recognize that our holding creates a split among

the circuits. The other appellate courts that have

addressed this issue have found that the phrase "other

law-enforcement officer" includes all types of officers,

whatever their duties. However, those cases have not

articulated a clear reason for this holding, and have

often stated their conclusions with little or no analysis.

See, e.g., Halverson v. United States, 972 F.2d 654 (5th

Cir. 1992), cert. denied, __ US. , 113 S.Ct. 1297

(1993); Cheney v. United States, 972 F.2d 247 (8th Cir.

1992); Schlaebitz v. United States Dep’t of Justice, 924

F.2d 193 (11th Cir. 1991); Ysasi v. Rivkind, 856 F.2d

1520 (Fed.Cir.1988); United States v. 2,116 Boxes of

All

Boned Beef, 726 F.2d 1481 (10th Cir.), cert. denied, 469

U.S. 825 (1984); United States v. Lockheed L-188

Aircraft, 656 F.2d 390 (9th Cir. 1979). One of the cases

most frequently cited by the other circuits is Formula

One. In Formula One, the court began its analysis by

noting that while "several circuits have ruled ... that [§]

2680(c) applies to detentions beyond the context of

customs duties and taxes," this has been done "with

scant discussion." 777 F.2d at 823. The court went on

to hold that the actions in question fell within the scope

of § 2680(c), but stated that it was reaching this holding

"without determining whether the exemption would

apply to searches by law enforcement officers with no

relationship to the customs or excise functions." Id. at

823-24. The conduct in Formula One was "sufficiently

akin to the functions carried out by Customs officials

to place the [DEA] agents’ conduct within the scope of

[$] 2680(c)." Id. at 824. Therefore, contrary to the

proposition for which it is often cited, Formula One does

not hold that § 2680(c) should apply to the activities of

all law enforcement officers regardless of whether there

is a nexus between tax and customs activities. Given

the lack of analysis by the other circuits, and what in

our opinion is a misreading of Formula One, we do not

feel obligated to join them in their interpretation of §

2680(c). Accordingly, we hold that § 2680(c) is limited

to the detention of goods by law enforcement officers

acting in a tax or customs capacity, and thus the

ye A12

district court erred in dismissing the FTCA claims

brought by the Kurinskys.

Ill

The Kurinskys next argue that they should be able

to seek damages directly against the United States,

without regard to the limitations of the FTCA, for

asserted Fifth Amendment due process violations. The

federal government, however, is amenable to suit only

insofar as it has consented to be sued. See United

States v. Mitchell, 463 U.S. 206, 212 (1983); United

States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 949, 953-

04, 47 L.Ed.2d 114 (1976). Since the United States has

not waived its sovereign immunity with respect to

alleged violations of the Fifth Amendment, except as

provided under the Tucker Act, 28 U.S.C. § 1346, the

district court did not err in dismissing this claim. See

Nuclear Transp. & Storage, Inc. v. United States, 890

F.2d 1348, 1351-53 (6th Cir. 1989), cert. denied, 494

U.S. 1079 (1990).

Finally, the Kurinskys contend that the district

court erred in applying a two-year statute of limitations

to their Bivens* claims. In McSurely v. Hutchinson,

823 F.2d 1002 (6th Cir. 1987), cert. denied, 485 U.S. 934

(1988), this court held that Bivens actions should be

governed by the same statute of limitations as § 1983

* Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (197 1).

Al13

actions. Later, in a unanimous en banc decision, this

court held that the two-year period in Ohio Revised

Code § 2305.10 governs actions under 42 U.S.C. § 1983.

Browning v. Pendleton, 869 F.2d 989, 990 (6th Cir.

1989). Thus it follows, as this court recently observed

in Friedman v. Estate of Presser, 929 F.2d 1151, 1158

(6th Cir. 1991), the relevant Ohio statute of limitations

for Bivens actions is two years.

The Kurinskys maintain that the four-year statute

of limitations found in Ohio Revised Code § 2305.09" is

more appropriate, and thus counts V and VI are saved.

They argue that, since this court’s decision in Browning,

there have been at least two Ohio appellate court

decisions that indicate a four-year period should be

applied to § 1983 actions.® The Kurinskys concede that

An action for any of the following causes shall

be brought within four years after the cause thereof

accrued:

(D) For an injury to the rights of the plaintiff

not arising on contract nor enumerated in sections

2305.10 to 2305.12, inclusive, 2305.14 and 1304.29

of the Revised Code.

S The two Ohio cases cited by the Kurinskys are

Bojac Corp. v. Kutevac, 64 Ohio App.3d 368 (1990), and

Weethee v. Boso, 64 Ohio App.3d 532 (1989). In Bojac,

Al4

this court is not bound by the Ohio court decisions, but

ask us to revisit this issue in light of these cases. We

note, however, that whatever merit there may be to the

Kurinskys’ argument only can be determined by this

court sitting en banc. See Salmi v. Secretary of Health

& Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)("A

panel of this Court cannot overrule the decision of

another panel."). Accordingly, the Kurinskys’ only

recourse on this claim is by way of en banc consider-

ation.

The Kurinskys also ask us to apply 28 U.S.C. §

1658, a federally-enacted statute of limitations, to their

Bivens claims. Section 1658 provides:

Except as otherwise provided by law, a civil

action arising under an Act of Congress enacted

after the date of the -nactment of this section

may not be commenced later than 4 years after

the cause of action accrues.

the court observed:

It is clear that appellants’ claim under Section

1983 does not fit into any of the categories of R.C.

2305.10 through 2305.12. It must, therefore, fall

within the general or residual statute for personal

injury actions, which is R.C. 2305.09(D).

64 Ohio App.3d at 370.

Al5

This provision was enacted on December 1, 1990.

Because the Kurinskys’ claims do not arise under "an

Act of Congress enacted after the date of the enactment

of this section," we find no merit to this argument.

Therefore, the district court did not err in dismissing

counts V and VI of the Kurinskys’ complaint.

REVERSED in part and AFFIRMED in part.

A16

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ANDREW C. KURIN- _)

SKY JR., et al., ) Case No. 1:92CV2285

)

Plaintiffs )

) MEMORANDUM AND

vs. ) ORDER

)

UNITED STATES OF )

AMERICA, et al., ) (Filed June 7, 1993)

)

Defendants. )

ALDRICH, J.

Andrew C. Kurinsky, Jr. and his wife, Donna A.

Kurinsky, bring this action against the United States

and twelve special agents of the Federal Bureau of

Investigation (hereinafter "FBI agents"),' alleging viola-

tions of the Federal Tort Claims Act ("FTCA"), 28

U.S.C. §2671 et seq., and the fourth and fifth amend-

' The twelve agents are Joseph L. Ramsak,

Linda T. Berry, William D. Hann, Barry Gummow, Bion

St. Bernard, Kevin D. Burnett, Dan Elvem Estrem,

Gary L. Hall, Albert L. McGinty, Jr., James M. Owens,

Lance R. Sakurada, and James J. White.

Al7

ments to the United States Constitution. The United

States and the FBI agents filed separate motions to

dismiss.

For the reasons set forth below, the United States’

motion to dismiss is granted.

The Kurinskys own and operate a business called

Arcade Sound, which manufactures, repairs and

distributes cable television equipment. Prior to March

1989, the FBI suspected that Andrew Kurinsky was vio-

lating 47 U.S.C. §553(a)(2), which prohibits the unau-

thorized reception of cable services, and was committing

wire fraud (47 U.S.C. §1343). As a result, the FBI

placed Kurinsky under surveillance. On March 27,

1989, based on information supplied by the FBI, Magis-

trate Judge Joseph W. Bartunek issued a search

warrant for the Arcade Sound premises. On March 29,

the FBI agents executed the search warrant and seized

cable signal descramblers, cable television converters,

assorted hardware, personal computers, numerous

documents, and two handguns. According to the Kurin-

skys, no inventory of the seized goods was made while

the property was removed, the property was mishandled

and damaged, and common electronic components,

which were not unique to the cable television industry,

were taken. The United States claims that the property

was returned to the Kurinskys between April 7, 1989

A18

and October 4, 1990. The Kurinskys claim that not all

of the property has been returned.

The Kurinskys filed this six-count action against the

United States and the FBI agents, alleging damages

stemming from the execution of the search warrant.

Counts I, II and III are brought pursuant to the FTCA.

Count IV alleges a violation of the due process clause

of the fifth amendment, and counts V and VI are Bivens

claims against the FBI agents, under the fourth and

fifth amendments.

II.

The United States’ Motion to Dismiss

A. Counts I, II and III

The FTCA provides that the United States shall be

hable, to the same extent as a private party, "for injury

or loss of property, or personal injury or death caused

by the negligent or wrongful act or omission of any

employee of the Government while acting within the

scope of his office or employment." 28 U.S.C. §1346(b).

The FTCA’s waiver of sovereign immunity is subject to

a number of exceptions, outlined in 28 U.S.C. §2680(a)-

(f), (h)-(n).

In the present case, the United States argues that

counts I, II and III should be dismissed for two reasons.

First, the United States asserts that the Kurinskys

have failed to state a claim under the FTCA. Specifical-

ly, the United States claims that the Kurinskys have

not described any negligent or wrongful act on the part

Al19

of any individual federal employee sufficient to impose

liability on the United States. This Court disagrees.

In Conley v. Gibson, 355 U.s. 41, 47 (1957), the United

States Supreme Court held that:

_.. the Federal Rules of Civil Procedure do not

require a claimant to set out in detail the facts

upon which he bases his claim. To the con-

trary, all the Rules require is "a short and plain

statement of the claim" that will give the

defendant fair notice of what plaintiffs claim

is and the grounds upon which it rests.

This Court finds that the amended complaint satisfies

the "notice pleading" requirement of Fed.R.Civ.P.

8(a)\(2), and adequately states a claim against the

United States.

Second, the United States argues that all of the

FTCA claims are barred because 28 U.S.C. §2680(c)

provides that the United States may not be sued for:

ment or collection of any tax or customs duty,

or the detention of any goods or merchandise

by any officer of customs or excise or any other

law enforcement officer.

(Emphasis added.) The United States asserts that the

FBI agents who executed the search warrant fall within

A20

the "any other law enforcement officer" clause in

§2680(c).

In order to rule on the United States’ motion to

dismiss, it is necessary for this Court to determine the

intended scope of §2680(c). The United States Supreme

Court has not yet addressed this precise issue. In

Kosak v. United States, 465 U.S. 848, 852 n.6, 104S.Ct.

1519, 79 L.Ed.2d 860 (1984), a case involving the

seizure of an art collection by customs officials, the

court wrote: "We have no occasion in this case to decide

what kinds of ‘law enforcement officer[s],’ other than

customs officials are covered by the exception."

Similarly, the Sixth Circuit has not addressed the

scope of §2680(c), and district courts within the Sixth

Circuit have reached different conclusions on this issue.

For example, in Kelly v. United States, 630 F.Supp. 428

(W.D. Tenn. 1985), a federal prisoner brought an FTCA

action, alleging that the Marshals Service negligently

handled his property, which resulted in the loss of his

diamond ring. The district court rejected the United

States’ argument that §2680(c) barred the action, ruling:

Kosak dealt with the exception from coverage

under §2680(c) of claims arising in respect of

the detention of any goods or merchandise by

the Customs Service. This case, of course, does

not involve the Customs Service; rather, this

lawsuit deals with the United States Marshals

A21

wi CE

Service in the handling of the property of a

prisoner. Accordingly, the exception in §2680(c)

does not apply in this case.

Id. at 432.

However, in Great Lakes Zoological Society, Inc. v.

United States, 1989 LEXIS 18186 (E.D. Mich. Nov. 30,

1989), a case involving the seizure and subsequent loss

of 3000 turtles by the United States Fish and Wildlife

Service, the district court held that the plaintiffs claim

was barred because the special agents of the Fish and

Wildlife Service were "law enforcement officers" within

the meaning of § 2680(c).

In support of its motion to dismiss, the United

States notes that the federal appellate courts that have

interpreted § 2680(c) have uniformly applied the

exception to law enforcement officials acting outside the

customs or excise contexts. See Halverson v. United

States. 972 F.2d 654, 655-56 (5th Cir.), cert. denied,

US. __, 113 S.Ct. 1297, 122 L.Ed2d 687 (1992)

(§ 2680(c) barred FTCA claim against Immigration and

Naturalization Service for loss of property at immigra-

tion checkpoint); Schlaebitz v. United States Dep't of

Justice, 924 F.2d 193, 194 (11th Cir. 1991) (§ 2680

barred claim against United States Marshals Service

for seizure and damage to luggage at airport); Ysasi v.

Rivkind, 856 F.2d 1520, 1524-25 (Fed.Cir. 1988)

(§ 2680(c) barred claim against Immigration and

A22

Naturalization Service border patrol for seizure of

truck); Formula One Motors, Ltd. v. United States, 777

F.2d 822 (2d Cir. 1985) (§ 2680(c) applied to seizures by

Food and Drug Administration agents);? United States

v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1490-91

(10th Cir.), cert. denied, sum _nom., Jarboe-Lackey

Feedlots, Inc. v. United States, 469 U.S. 825, 105 S. Ct.

105, 83 L.Ed.2d. 49 (1984) (§ 2680(c) barred claim

. It must be noted that Formula One did not

address the issue of whether § 2680(c) applied to all law

enforcement officials acting in their official capacities.

In Formula One, 777 F.2d 822 (2d Cir. 1985), the

plaintiff imported an automobile into the United States.

DEA agents seized the vehicle, disassembled it, and

rendered it worthless. In affirming the district court’s

decision to dismiss the plaintiffs claim under § 2680(c),

the Second Circuit ruled:

[Wle are satisfied that the detention of the

automobile and its search by the DEA agents

fell within the scope of sectien 2680(c), without

determining whether the exemption would

apply to searches by law enforcement officers

with no relationship to the customs of excise

functions. .... The seizure of an automobile

still in transit from overseas and a search of

that automobile for narcotics are sufficiently

akin to the functions carried out by Customs

Officials to place the agents’ conduct within the

scope of section 2680(c).

Id. at 823-24 (emphasis added).

A23

against United States Department of Agriculture for

seizure of beef); United States v. $149,345 United

States Currency, 747 F.2d 1278, 1283 (9th Cir. 1984)

(§ 2680(c) barred claim against federal narcotics agents,

who seized currency after they obtained suspect’s

permission to search his briefcase at airport); United

States v. Lockheed L-188 Aircraft, 656 F.2d 390 (9th

Cir. 1979) (§ 2680(c) barred claim against Federal

Aviation Administration for seizure of aircraft); United

States v. 1500 Cases, More or Less, 249 F.2d 382 (7th

Cir. 1957) (§ 2680(c) applied to seizure by Food and

Drug Administration agents).

In response, the Kurinskys argue that § 2680(c)

does not apply to detentions by law enforcement officers

who are not acting in aid of the enforcement of customs

or tax laws. In support, the Kurinskys rely on the

concurring opinions of Judge Tang, in A-Mark, Inc. v.

United States Secret Service, 593 F.2d 849, 850-51 (9th

Cir. 1978), and Judge Oakes, in Formula One, 777 F.2d

at 825, which discuss the scope of § 2860(c).

In A-Mark, Judge Tang noted that:

[t]he governmental function of assessing and

collecting customs duties necessarily requires

some period of detention when the imported

item is inspected for purposes of evaluation. A

similar situation often arises when propert;

must be levied against for tax purposes: It

A24

follows that where the ultimate act of assessing

the tax or duty is rendered exempt, the inciden-

tal activity of detention must also be protected.

§ 2680(c) contains parallel clauses which cover

"the assessment or collection of any tax or

customs duty, or the detention of any goods or

merchandise by any officer of customs or excise

or any other law-enforcement officer." (empha-

sis added). The clauses both dwell exclusively

on customs and taxes, except for the final

reference to other law-enforcement officers.

The "any other law-enforcement officer" phrase

should be viewed as Congress’ recognition of

the fact that federal officers, other than cus-

toms and excise officers, sometimes become

involved in the activity of detaining goods for

tax or customs purposes.

593 F.2d at 850-51.

In a concurring opinion in Formula One, Judge

Oakes observed that the plain language of § 2680(c) and

the legislative history provided support for Judge Tang’s

position in A-Mark. Judge Oakes cencluded that:

[W]here no nexus exists between customs

activity and the act complained of, I would hold

that § 2680(c) does not bar recovery. Other-

wise, the detention exception ... precludes a

broader spectrum of suits to redress injury to

A25

property inflicted by federal law enforcement

officers, whenever and wherever they are

acting, than I believe Congress ever intended.

777 F.2d at 825. See also Hydrogen Technology Corp.

v. United States, 656 F. Supp. 1126, 1128 (D. Mass),

affd on other grounds, 831 F.2d 1155 (1st Cir. 1987),

cert. denied, 485 U.S. 1022, 108S. Ct. 1995, 100 L.Ed2d

227 (1988) (district court adopted Judge Oakes’ view

that § 2680(c) did not apply outside the customs or

excise contexts).

This Court has reviewed the cases cited by both

parties, and finds the United States’ interpretation of

§ 2680(c) to be persuasive. First, this Court finds that

the legislative history of § 2680(c) sheds little, if any,

light on the intended scope of the exception. Second,

all of the federal appellate courts that have considered

§ 2680(c) have concluded that the exception applied to

claims involving law enforcement officers, other than

customs and tax agents, performing their proper duties.*

Third, Judge Tang’s argument in A-Mark in favor of a

While this Court recognizes that a number of

the appellate cases cited by the United States involved

law enforcement activities which, like the activities in

Formula One, were sufficiently akin to the functions of

customs officials, to fall within the interpretation of

§ 2680(c) endorsed by Judges Tang and Oakes, the fact

remains that no federal Circuit Court has adopted such

a narrow interpretation of § 2680(c).

A26

EET Oy

ni}

narrow reading of § 2680(c) was rejected by the Ninth

Circuit Court of Appeals. See Gifford v. United States,

967 F.2d 586 (9th Cir. 1992) (Table) (published on 1992

U.S. App. LEXIS 13976) (§ 2680(c) barred claim against

Bureau of Land Management for seizure of property);

Lockheed, 656 F.2d at 397. Therefore, this Court holds

that § 2680(c) is applicable to the present case.

The Kurinskys also argue that § 2680(c) does not

apply to damages resulting from negligence occurring

in the course of the seizure, as distinguished from the

detention, of the Kurinskys’ property. While the plain

language of § 2680(c) only discusses detention, the

Kurinskys fail to cite any authority to support their

interpretation of § 2680(c). Moreover, under the

Kurinskys’ reading of the exception, the United States

could be sued for damage caused by a customs or tax

agent during the seizure of property. but not the

subsequent detention of property. Such a result is

illogical. Therefore, this Court finds that § 2680(c)

applies to any property damage resulting from the

seizure and detention of property by federal law

enforcement officials.

Finally, the Kurinskys claim that damages resulting

from the negligent infliction of emotional distress or

abuse of process are not barred. Given the fact that

§ 2680(c) is subject to broad interpretation, see Kosak

465 U.S. at 853-54, this Court finds that § 2680(c)

covers all injuries arising from the United States’

A27

detention of property, including those injuries based on

state law tort theories. The Kurinskys’ state law claims

are barred because the United States has not waived

its sovereign immunity to be sued.

In sum, the United States’ motion to dismiss counts

I, II and III is granted.

B. Count IV

In count IV of the complaint, the Kurinskys seek

damages against the United States for the taking of

their property in violation of the due process clause of

the fifth amendment. See Complaint, para. 36. In its

motion to dismiss, the United States correctly points out

that a Bivens-type action based on a constitutional tort -

may not be brought against the United States where the

United States has not waived its sovereign immunity

and consented to be sued. In Bivens v. Six Unknown

Names Agents of the Federal Bureau of Narcotics, 403

U.S. 388, 410, 91 S. Ct. 1999, 29 L.Ed.2d 619 (1971),

Justice Harlan noted, in concurrence, that: "[hlowever

desirable a direct remedy against the Government

might be as a substitute for individual official liability,

the sovereign remains immune from suit."

This Court grants the United States’ motion to

dismiss count IV of the complaint.

A28

The FBI Agents’ Motion to Dismiss

The FBI agents argue that counts V and VI should

be dismissed because: (1) the statute of limitations has

run on the Bivens claims against the FBI agents; (2) the

complaint fails to state a cognizable claim for relief

against the FBI agents because the search was based

on probable cause; (3) the existence of an adequate post-

deprivation remedy precludes the fifth amendment

claim for damages against the FBI agents; and (4) the

FBI agents are protected by qualified immunity because

their conduct did not violate clearly established

constitutional rights.

This Court finds that the FBI agents’ motion to

dismiss is well taken because this action was brought

after the statute of limitations had run on the Bivens

claims.‘ In Wilson v. Garcia, 471 U.S. 261, 105 S. Ct.

1938, 85 L.Ed.2d 254 (1985), the United States Supreme

Court held that a state’s personal injury statute of

limitations is the statute to be applied to a 42

U.S.C§ 1983 claim. In 1989, the Supreme Court ncted

that where a state has multiple statutes of limitation

for personal injury actions, a § 1983 action should be

governed by the "general or residual statute for personal

injury actions." Owens v. Okure, 488 U.S. 235, 109 S.

Ct. 573, 102 L.Ed.2d 594 (1989). In Browning v.

Given this finding, this Court does not address

the FBI agents’ other arguments in favor of dismissal.

A29

Pendleton, 869 F.2d 989, 990 (6th Cir. 1989), the Sixth

Circuit held that in Ohio, Ohio Rev. Code § 2305.10,

which provides for a two year statute of limitations,

governs § 1983 actions.

Since Bivens actions against federal employees are

analogous to § 1983 actions against state actors, see

McSurely v. Hutchinson, 823 F.2d 1002, 1004-05 (6th

Cir. 1987), cert. denied, 485 U.S. 934 (1988), the Sixth

Circuit, in Friedman v. Estate of Presser, 929 F.2d

1151, 1158-59 (6th Cir. 1991), held that the relevant

Ohio statute of limitations for Bivens actions was also

two years (Ohio Rev. Code § 2305.10). This limitations

period begins to run when a person knew or should

have known of the injury which forms the basis of her

claim Id. at 1159; see also Sevier v. Turner, 742 F.2d

262, 273 (6th Cir. 1984).

In the present case, the search warrant was

obtained on March 27, 1989, and was executed on

March 29, 1989. Therefore the Kurinskys knew of the

alleged constitutional deprivation at that time. This

action was filed on October 29, 1992, well outside the

two year period for bringing a Bivens action.

Given this rule, the Kurinskys’ argument that

the statute of limitations has not yet begun to run

because they are being subjected to a continuing

constitutional deprivation is meritless. See Plaintiffs’

Brief in Opposition to Motion of Individual Defendants

to Dismiss, at 18 n.4.

A30

In opposition the motion to dismiss, the Kurinskys

argue that the Sixth Circuit misapplied the rule set

forth in Owens in determining which of Ohio’s multiple

personal injury statutes of limitation should be applied

to Bivens actions. Specifically, the Kurinskys assert

that the appropriate statute of lignitations for Bivens

actions is four years, as stated in Ohio Rev. Code

§ 2305.09(D). However, this argument is unpersuasive

given the fact that the Sixth Circuit, in Hull v.

Cuyahoga Valley Bd. of Educ., 926 F.2d 505 (6th Cir.

1991), cert. denied, Hull v. Schuck, _ U.S.__, 111.

Ct. 2917, 115 L.Ed.2d 1080 (1992), declined to apply

§ 2305.09(D) to § 1983 actions.

While the Court recognizes that the reliance on a

state’s statute of limitations for Bivens claims results

in inconsistent, and often discriminatory, treatment of

plaintiffs in different states, the current state of the law

in the Sixth Circuit, as stated in Friedman, is clear.

Because the Kurinsky failed to file this suit against the

FBI agents within the two year limitations period for

Bivens actions, this Court granted the FBI agents’

motion to dismiss.

In sum, this Court grants the United States’ motion

to dismiss counts I, II, II], and IV, and finds that the

Kurinskys’ claims against the individual FBI agents

(counts V & VI) are barred by the applicable statute of

limitations. Therefore, this action is dismissed in its

entirety, with prejudice.

IT IS SO ORDERED.

/s/Ann Aldrich

ANN ALDRICH

UNITED STATES DISTRICT JUDGE

A32

och i ll

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ANDREW C. KURIN-

SKY JR., et al., Case No. 1:92CV2285

Plaintiffs

ORDER

(Filed June 7, 1993)

UNITED STATES OF

)

vs. )

)

AMERICA, et al., )

)

Defendants.

ALDRICH, J.

The Court has filed its memorandum and order

granting the United States’ motion to dismiss counts i,

II, III, and IV; and finding that counts V and VI are

barred by the applicable statute of limitations; there-

fore,

IT IS ORDERED that final judgment is entered in

favor of the defendants; and the case is dismissed, with

prejudice.

IT IS FURTHER ORDERED that this judgment is

final and appealable.

/s/Ann Aldrich

ANN ALDRICH

UNITED STATES DISTRICT JUDGE

A33

EEE

No. 93-3886

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ANDREW C. KURINSKY, JR., )

ET AL., )

)

Plaintiffs-Appellants, )

) ORDER

vs. _) (Filed November 1,

) 1994)

UNITED STATES OF )

AMERICA, ET AL., )

)

Defendants-Appelles. )

BEFORE: CONTE, GUY, and BOGGS, Circuit J udges.

The court having received two petitions for rehear-

ing en banc, and the petitions having been circulated

not only to the original panel members but also to all

other active judges of this court, and no judge of this

court having requested a vote on the suggestion for

rehearing en banc, the petitions for rehearing have been

referred to the original hearing panel.

The panel has further reviewed the petitions for re-

hearing and concludes that the issues raised in the

petitions were fully considered upon the original sub-

mission and decision of the case. Accordingly, the

petitions are denied.

A34

ee ee eee

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

Leonard Green, Clerk

A35

UNITED STATES CODE

28 U.S.C. § 1658. Time limitations on the com-

mencement of civil actions arising under Acts of

Congress

Except as otherwise provided by law, a civil action

arising under an Act of Congress enacted after the date

of the enactment of this section may not be commenced

later than 4 years after the cause of action accrues.

A36

UNITED STATES CODE

42 U.S.C. § 1988. Proceedings in vindication of

civil rights; attorney’s fees; expert fees.

(a) Applicability of statutory and common law

The jurisdiction of 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 vindica-

tion, 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 State wherein the court having jurisdic-

tion 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, 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.

(b) Attorney’s fees

In any action or proceeding to enforce a provision

of sections 1981, 1981a, 1982, 1983, 1985 and 1986 of

A37

this title, title IX of Public Law 92-318, the Religious

Freedom Restoration Act of 1993, 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.

In awarding an attorney’s fee under subsection (b)

of this section in any action or proceeding to enforce a

provision of section 1981 or 1981a of this title, the court,

in its discretion, may include expert fees as part of the

attorney's fee.

A38

OHIO REVISED CODE

§ 2305.09 Four years; certain torts.

An action for any of the following causes shall be

brought within four years after the cause thereof

accrued:

(A) For trespassing upon real property;

(B) For the recovery of personal property, or for

taking or detaining it;

(D) For an injury to the rights of the plaintiff not

arising on contract nor numerated in sections 2305.10

to 2305.12, inclusive, 2305.14 and 1304.29 of the

Revised Code.

If the action is for trespassing under ground or

injury to mines, or for the wrongful taking of personal

property, the causes thereof shall not accrue until the

wrongdoer is discovered; nor, if it is for fraud, until the

fraud is discovered.

A39

OHIO REVISED CODE

§ 2305.10 Bodily injury or injury to personal

property.

An action for bodily injury or injuring personal

property shall be brought within two years after the

cause thereof arose.

For purposes of this section, a cause of action for

bodily injury caused by exposure to asbestos or to

chromium in any of its chemical forms arises upon the

date on which the plaintiff is informed by competent

medical authority that he has been injured by such

exposure, or upon the date on which, by the exercise of

reasonable diligence, he should have become aware that

he had been injured by the exposure, whichever date

occurs first.

For purposes of this section, a cause of action for

bodily injury incurred by a veteran through exposure

to chemical defoliants or herbicides or other causative

agents, including agent orange, arises upon the date on

which the plaintiff is informed by competent medical

authority that he has been injured by such exposure.

As used in this section, "agent orange,” "causative

agent," and "veteran" have the same meanings as in

section 5903.21 of the Revised Code.

For purposes of this section, a cause of action for

bodily injury which may be caused by exposure to

diethylstilbestrol or other nonsteroidal synthetic

estrogens, including exposure before birth, arises upon

A40

the date on which the plaintiff learns from a licensed

physician that he has an injury which may be related

to such exposure, or upon the date on which by the

exercise of reasonable diligence he should have become

aware that he has an injury which may be related to

such exposure, whichever date occurs first.

A41

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.