Opposition Brief — Kurinsky v. United States

Supteme Court U.S

SiLe& Y

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No. 94-1284 APR 3 1995 |

OFM ur fet

OCTOBER TERM, 1994

ANDREW C. KURINSKY, JR., ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

DREw S. Days, III

Solicitor Generai

FRANK W. HUNGER

Assistant Attorney General

BARBARA L. HERWIG

SUSHMA SONI

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

~ BEST AVAILABLE COPY,

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QUESTIONS PRESENTED

1. Whether state statutes of limitations apply to

claims made pursuant to Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971).

2. If state statutes of limitations apply to Bivens

claims, whether the court of appeals correctly held

that the two-year limitation period provided by Ohio

Revised Code § 2305.10 (1991) for “[a]n action for

bodily injury or injuring personal property” applies

to petitioners’ claims.

(1)

TABLE OF CONTENTS

Page

Opinions below ................ | a pabilehebaabhinkdenstltndcensbsvicndmaaees 1

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TABLE OF AUTHORITIES

Cases:

Bieneman v. Chicago, 864 F.2d 463 (7th Cir.

1988), cert. denied, 490 U.S. 1080 (1989) ........... 5, 6

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) .......... 2,4

Bojac Corporation v. Kutevac, 581 N.E.2d 625

SEE ie MR RUTED | eecerigricen ch ctericamansonvsppnementenions 11

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

(Re rants Re ber a aren 9,10, 11

Butz v. Economou, 488 U.S. 478 (1978) .................. 5

Carlson Vv. Green, 446 U.S. 14 (1980) —.................... 4,6,7

Chin v. Bowen, 833 F.2d 21 (2d Cir. 1987) -......... 6

Friedman V. Estate of Presser, 929 F.2d 1151 (6th

ON aaa nesthiseaipniencsancielneinipmnittanbenniammeroecen 3

Goodman v. Lukens Steel Co., 482 U.S. 656

BD sch caesstindinansareweprahersiaiasinenanrncysnaneonsnbbtasnbaietinwens 5

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

denied, 494 U.S. 1029 (1990) ................................ 9,11

Lounsbury V. Jeffries, 25 F.3d 131 (2d Cir. 1994) .. 9

Martin v. Adult Parole Authority, No. 9-93-45

(Ohio Ct. App. Mar. 4, 1994), motion to certify

the record overruled, 635 N.E.2d 43 (Ohio

Es iia heen oeleriheleanmrendainnnenviiecneneninpmentinentionemeunnes 11

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

1987), cert. denied, 485 U.S. 934 (1988) ....... 5-6, 10, 11

Mulligan v. Hazard, T77 F.2d 340 (6th Cir. 1985),

cert. denied, 476 U.S. 1174 (1986) ...................... 10

(II)

a i NR a a tt

IV

Cases—Continued: Page

Owens Vv. Okure, 488 U.S. 235 (1989) .............. 5, 6, 8, 9, 10

Van Strum v. Lawn, 940 F.2d 406 (9th Cir. 1991).. 5, 6,9

Weethee Vv. Boso, 582 N.E.2d 19 (Ohio Ct. App.

1989), motion to certify the record overruled,

550 N.E.2d 482 (Ohio 1080) on ncn..ccccorcceoneesse 10

Wilson V. Garcia, 471 U.S. 261 (1985) -................ 5, 6, 7, 8,

10, 11, 12

Yaklevich v. Kemp, Schaeffer & Rowe Co.,

BR eS BE! Bee. |) een ee 11

Constitution and statutes:

U.S. Const.:

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ST —cccisvidevdsncttnctinaspenrsdduonetnassninnendasaaaelanania 2

Deke PCOS CMI onan csrcccececnsesensnrnncencssenesenes 3

Federal Tort Claims Act, 28 U.S.C. 2671 et seq..... 3

SE EEE, BU sisieicnineensaseliabiliienitpenidanentiieniaatiniianins 2

2B USB.C. 2B (Sata V TGR) oaceinerecencesecceniccnerteeesesnstns 4,8 -

ee ie: EE ciitcnere sictinssccnseestnbtiinitcaiengiiieainmiiaaiins 5

GR TETRA. Te ieiinnte sdtenisinteisclinnenst 3, 4, 5, 7, 8, 10, 11, 12

42 U.S.C. 1988 (1988 & Supp. V 1998) ....................... 6

BY TE Bere IR cite ttnieetndinctatintemetsaaiiliccmn 2

Ohio Rev. Code (1991):

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OE) ictcinnittnaitestittntiinitiionniinnaliel 9,10, 11

ih IIIT sssiitnnnnannitiantenenbiondmostiagniigniananaiestiinial 8, 4, 9, 11

TGS oiesisinieeste linssitcaihachitisnitibilncstleinatedenctilidiaians 10

Iu the Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-1284

ANDREW C. KURINSKY, JR., ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-

A16) is reported at 33 F.3d 594. The opinion of the

district court (Pet. App. Al7-A32) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on August 26, 1994. Petitions for rehearing were

denied on November 1, 1994. Pet. App. A34-A35.

The petition for a writ of certiorari was filed on

(1)

2

January 27, 1995. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

This case arises out of a federal investigation into

suspected wire fraud and other criminal violations

by petitioner Andrew Kurinsky. The Kurinsky fam-

ily owns and operates a business that manufactures,

repairs, and distributes cable television and other

eiectronic equipment. Pet. App. A2-A3. The FBI

suspected petitioner Andrew Kurinsky of committing

wire fraud in violation of 18 U.S.C. 1343, and of

modifying and distributing cable equipment in viola-

tion of 47 U.S.C. 553(2)(2), which prohibits the

sale of equipment intended to promote the unauthor-

ized reception of cable services. On March 29, 1989,

the FBI searched petitioners’ business premises pur-

suant to a valid search warrant and seized cable and

other electronic equipment, computers, documents,

and handguns. The government returned the seized

material between April, 1989, and August, 1990.

See Pet. App. A3.

On October 29, 1992, petitioners filed suit against

the United States and twelve individual FBI agents

for damages arising out of the search. Pet. App.

A3, A1l7. They alleged that the United States had

negligently damaged their property and had deprived

them of their property without due process in viola-

tion of the Fifth Amendment. They also sought dam-

ages against the individual federal agents under

Bivens v. Six Unknown Named Agents of Federal

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

ing that the agents had violated their Fourth and

Fifth Amendment rights in the conduct of the search.

See Pet. 8, 9.

3

The district court dismissed the Bivens claims

against the individual defendants as _ time-barred.

Pet. App. A29-A31.’ The district court followed the

Sixth Circuit’s decision in Friedman v. Estate of

Presser, 929 F.2d 1151, 1158-1159 (1991), in which

the court of appeals held that the relevant statute of

limitations for Bivens actions in Ohio is the two-

year limitation period in Ohio Revised Code

§ 2305.10 (1991), the limitation period also applic-

able to damages actions brought against state actors

under 42 U.S.C. 1983. Pet. App. A30.

The court of appeals affirmed the dismissal of the

Bivens claims. Pet. App. A1l3-A16. The court ob-

served that, in prior decisions, it had held that

Bivens actions should be governed by the same stat-

ute of limitations as applies to actions under 42

U.S.C. 1983, and that the two-year period in Ohio

Revised Code § 2305.10 (1991) governs actions under

42 U.S.C. 1983. Pet. App. A13-A14. Thus, the court

held, “it follows, as this court recently observed in

Friedman * * * [that] the relevant Ohio statute of

limitations for Bivens actions is two years.” Jd. at

Al4.

In both the district court and the court of appeals,

petitioners urged application of the four-year limita-

tion period in Ohio Revised Code § 2305.09 (1991),

and contended that Ohio state appellate courts had

1 The district court also dismissed petitioners’ claims against

the United States. Pet. App. A28. The court of appeals sub-

sequently reversed the dismissal of the claims based on negli-

gence, which were brought under the Federal Tort Claims

Act, 28 U.S.C. 2671 et seq. (see Pet. App. Al2-A13), but

affirmed the dismissal of the claim based on the Due Process

Clause itself (see id. at A13). Petitioners do not renew their

due process claim against the United States in this Court.

4

applied that four-year period to actions under 42

U.S.C. 1983. The court of appeals nevertheless found

its prior decisions to be controlling and indicated that

petitioners’ recourse was to seek en banc review. Pet.

App. Al4-Al15. The court also rejected petitioners’

argument for application of the four-year limitation

period in 28 U.S.C. 1658 (Supp. V 1993) for “civil

action[s] arising under an Act of Congress enacted

after the date of the enactment of this section [De-

cember 1, 1990],” holding that Section 1658 plainly

does not encompass Bivens actions. Pet. App. A15-

A16. The court subsequently denied petitioners’ re-

quest for rehearing en banc. Jd. at A34-A35.

ARGUMENT

The court of appeals correctly concluded that peti-

tioners’ Bivens actions should be governed by the

state statute of limitations applicable to actions

under 42 U.S.C. 1983. That conclusion is consistent

with the decisions of every court of appeals that has

addressed statutes of limitations for Bivens actions.

The court also employed the correct analysis in con-

cluding that the applicable state statute of limita-

tions was Ohio Revised Code § 2305.10 (1991).

1. Petitioners allege a cause of action for dam-

ages under Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics, 403 U.S. 388

(1971), which “established that the victims of a con-

stitutional violation by a federal agent have a right

to recover damages against the official in federal

court despite the absence of any statute conferring

such a right,” Carlson v. Green, 446 U.S. 14, 18

(1980). Neither the Constitution nor any federal

statute specifies a limitation period for Bivens ac-

tions, and the Court has never determined what stat-

«!

5

utes of limitations apply to such actions. The Court

has, however, addressed the appropriate statute of

limitations to apply to constitutional claims against

state actors under 42 U.S.C. 19838, which also lacks

an express limitation period. In Wilson v. Garcia,

471 U.S. 261 (1985), the Court noted that a lack

of an express statute of limitations is ‘a void which

is commonplace in federal statutory law,” id. at 266,

and observed that the “settled practice” in such sit-

uations “has been to adopt a local time limitation as

federal law if it is not inconsistent with federal law

or policy to do so,” id. at 266-267. The Court thus

directed lower courts to borrow the most analogous

limitation period under state law, the statute of limi-

tations for personal injury actions. Jd. at 276-280;

see Owens v. Okure, 488 U.S. 235, 249 (1989); see

also Goodman v. Lukens Steel Co., 482 U.S. 656, 661-

662 (1987) (same for actions under 42 U.S.C.

1981).

As the Ninth Circuit has observed, ‘“[a]ctions

under § 1983 and those under Bivens are identical

save for the replacement of a state actor under

§ 1983 by a federal actor under Bivens.” Van Strum

v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991); see also

Bieneman v. Chicago, 864 F.2d 463, 469 (7th Cir.

1988), cert. denied, 490 U.S. 1080 (1989). Both

Bivens actions and Section 1983 actions are designed

to provide redress for constitutional violations, and

the same immunity standards apply in both kinds

of actions. Butz v. Economou, 438 U.S. 478, 500-

501 (1978). In light of those similarities, every

court of appeals that has considered the issue has

concluded that the statute of limitations for claims

brought under 42 U.S.C. 1983 applies also to Bivens

claims. See McSurely v. Hutchison, 823 F.2d 1002,

6

1005-1006 (6th Cir. 1987), cert. denied, 485 U.S.

934 (1988); Van Strum v. Lawn, 940 F.2d at 410;

Bieneman v. Chicago, 864 F.2d at 469-470; Chin v.

Bowen, 833 F.2d 21, 23-24 (2d Cir. 1987).

Petitioners argue (Pet. 12-13) that state statutes

of limitations apply to Section 1983 actions only by

virtue of 42 U.S.C. 1988 (1988 & Supp. V 1993),

which directs the courts to apply, to civil rights cases,

“the common law, as modified and changed by the

constitution and statutes of the State * * *, so far

as the same is not inconsistent with the Constitution

and laws of the United States.” Petitioners reason

that, because the Bivens remedy is judicially created

rather than statutory, the directive of Section 1988

does not apply. Pet. 13. In Wilson v. Garcia, how-

ever, the Court indicated that Section 1988 only con-

firmed that the “settled practice” of borrowing

statutes of limitations from state law should apply

to civil rights cases as well. 471 U.S. at 266-267

& n.12; see also Owens v. Okure, 488 U.S. at 239

(Section 1988 “endorses” the borrowing of state-law

limitations provisions). The courts of appeals have

also agreed that the decision in Wilson “d[id] not

depend on § 1988. Nothing in the text or history of

that statute speaks to the questio[n].” Bieneman v.

Chicago, 864 F.2d at 469; see also Van Strum v.

Lawn, 940 F.2d at 409 (Wilson rested “on the im-

putation of purposes to the 1871 Congress that

enacted §§ 1983 and 1988 based on practical con-

cerns about judicial administration of that statute’).

Petitioners invoke concerns about the need for uni-

formity in the Bivens remedy, which is a creation

of federal law, and they rely on Carlson v. Green,

446 U.S. 14, 23-25 (1980), in which the Court con-

cluded that a uniform federal rule of survival for

ts

7

Bivens actions was necessary “for complete vindica-

tion of. constitutional rights,” id. at 24. See Pet.

15-17. Nothing in Carlson, however, is inconsistent

with the borrowing of state statutes of limitations.

In Carlson, it was alleged that the plaintiff’s dece-

dent died as a result of unconstitutional actions by

federal prison officials. 446 U.S. at 16. Had the

cause of action not survived the victim’s death, there

would have been no remedy for the deprivation of

constitutional rights. In such a situation, it was

clear that a state survivorship law abating a cause

of action on the death of the victim would be incon-

sistent with federal policy. See id. at 24; ef. Wilson

v. Garcia, 471 U.S. at 266-267 (state law should be

borrowed to fill federal gap where “it is not incon-

sistent with federal law or policy to do so”). Carl-

son did not mandate uniform rules to govern all

aspects of Bivens litigation; indeed, it expressly left

open whether federal law should incorporate state

rules on other survivorship issues for Bivens claims.

446 U.S. at 25 n.11.

The federal interest in uniformity and certainty

of statutes of limitations for Bivens actions is ade-

quately served by the courts’ practice of borrowing

only one statute of limitations for each State. See

Wilson, 471 U.S. at 272, 275. That practice ensures

that every plaintiff bringing a Bivens action within

a particular State will know the applicable limitation

period. In Bivens actions, as under Section 1983,

“the need for national uniformity ‘has not been held

to warrant the displacement of state statutes of limi-

tations,’ Wilson, 471 U.S. at 275, and the federal

interest in avoiding unnecessary litigation over a

time bar supports the practice of borrowing one, and

only one, statute of limitations for each State. Con-

8

gruence among Section 1983 and Bivens actions on

the limitation issue also makes it “an uncomplicated

task for judges, lawyers, and litigants [to ascertain

the proper statute], rather than a source of uncer-

tainty, and unproductive and ever-increasing litiga-

tion.” Ibid.

Finally, petitioners rely (Pet. 13) on 28 U.S.C.

1658 (Supp. V 1993), which provides that “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.” By its own terms, 28 U.S.C.

1658 has no application to Bivens actions, which do

not arise under an Act of Congress. Petitioners ar-

gue, however, that Section 1658 represents a “na-

tional policy” in favor of a four-year limitations

period for federal actions that otherwise lack a stat-

ute of limitations. Jbid. But when Congress enacted

Section 1658 in 1990, it was well aware of the

existence of Bivens actions and of the courts’ well

settled practice of borrowing state statutes of limita-

tions for such actions. Congress could have easily

directed that Bivens actions be governed by Section

1658, had it desired that result. Instead, it left un-

disturbed the practice of borrowing state law unless

that law is inconsistent with federal law or policy.

2. Petitioners argue (Pet. 18-28) that, even if the

same state statute of limitations applies to both Sec-

tion 1983 and Bivens actions, the courts below ap-

plied the wrong statute of limitations. In Owens v.

Okure, this Court held that, where state law provides

multipie statutes of limitations for personal injury

actions, courts should borrow the state’s general or

residual statute of limitations for personal injuries.

488 U.S. at 249-250. The Court characterized a gen-

9

eral provision as one “which applies to all personal

injury actions with certain specific exceptions,” id.

at 246, and a residual provision as one “which ap-

plies to all actions not specifically provided for, in-

cluding personal injury actions.” Jd. at 246-247.

Thus, Owens v. Okure mandates that courts select

the state statute of limitations that, of those avail-

able, best fits within the category of general or

residual statutes of limitations for personal injuries.

That determination will necessarily vary from State

to State, depending on the wording of state statutes.

In 1989, the Sixth Circuit, sitting en banc, concluded

that the appropriate limitations period for Section

1983 claims is found in Ohio Revised Code § 2305.10

(1991), which provides that “[a]n action for bodily

injury or injuring personal property shall be brought

within two years after the cause thereof arose.”

Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir.

1989) .?

Petitioners argue (Pet. 21-22) that the appropri-

ate statute of limitations is in fact the four-year

limitations period in Ohio Revised Code § 2305.09

(D) (1991), “[f]or an injury to the rights of the

plaintiff not arising on contract nor enumerated in

sections 2305.10 to 2305.12 * * * of the Revised

Code.” The Sixth Circuit has concluded, however,

* Contrary to petitioners’ contentions (Pet. 22-24), Van

Strum v. Lawn, 940 F.2d 406 (9th Cir. 1991), Lounsbury V.

Jeffries, 25 F.3d 131 (2d Cir. 1994), and Gray v. Lacke, 885

F.2d 399 (7th Cir. 1989), cert. denied, 494 U.S. 1029 ( 1990),

do not conflict with Browning or the decision below. In each

case, the statute of limitations was chosen from the array of

possible state-law provisions, in light of the interpretations

placed on them by the court of appeals. The courts of appeals

all recognize that Wilson and Owens require reference to the

residual or general statute of limitations for personal injuries.

10

that Section 2305.09(D) does not provide the appro-

priate limitation period, reasoning that that section

is not a residual personal injury statute of limita-

tions, but rather a residual, or catch-all, statute of

limitations applicable to all causes of action not oth-

erwise covered by a statute of limitations. See

McSurely v. Hutchison, 823 F.2d at 1005-1006;

Mulligan v. Hazard, 777 F.2d 340, 343 n.4 (6th Cir.

1985), cert. denied, 476 U.S. 1174 (1986), overruled

on other grounds, Browning v. Pendleton, 869 F.2d

989, 992 (6th Cir. 1989) (en banc).* This Court has

specifically disapproved the use of such a catch-all

limitation period unless it embraces, “either explic-

itly or by judicial construction, unspecified personal

injury actions,” Owens, 488 U.S. at 250 n.12; Wil-

son, 471 U.S. at 278, as the Sixth Circuit recognized

in Mulligan, supra.

Petitioners note (Pet. 24-27), that some Ohio state

courts have characterized Section 2305.09(D) as the

State’s general or residual personal injury statute of

limitations and have applied that statute of limita-

tions to state-court actions brought under 42 U.S.C.

1983.* As this Court made clear in Wilson v. Garcia,

In Mulligan, the Sixth Circuit applied Ohio’s one-year

statute of limitations for intentional torts, Ohio Rev. Code

§ 2305.11 (1991), to a Section 1983 action. That choice was

disapproved by Owens v. Okure, which rejected the analogy

of intentional torts for Section 1983 cases. 488 U.S. at 242-

244, The remainder of the Mulligan court’s reasoning, that

the catch-all statute of limitations should not be borrowed,

survived Owens, and indeed was reaffirmed in it.

* The Ohio Court of Appeals for Franklin County concluded

in Weethee v. Boso, 582 N.E.2d 19, 21 (1989), motion to

certify the record overruled, 550 N.E.2d 482 (Ohio 1990),

that the four-year period in Section 2305.09(D), was appli-

11

however, the appropriate limitation period for Sec-

tion 1983 actions, even if borrowed from state law,

“is ultimately a question of federal law.” 471 U.S.

at 269-270. “Even when principles of state law are

borrowed to assist in the enforcement of this federal

remedy, the state rule is adopted as ‘a federal rule

responsive to the need whenever a federal right is

impaired.’” Id. at 269; see also Gray v. Lacke, 885

F.2d 399, 409 (7th Cir. 1989) (declining to adopt

statute of limitations applied by Wisconsin state

courts to Section 1983 actions).

In concluding that Section 2305.10 was the appro-

priate statute of limitations for Section 1983 and

Bivens actions, the Sixth Circuit faithfully applied

this Court’s precedents in Wilson and Owens. If the

Sixth Circuit has erred in selecting Ohio’s residual

personal injury statute of limitations through appli-

cation of those precedents, that error raises no issue

of general importance calling for this Court’s review.®

cable to a Section 1983 claim. The Court of Appeals for

Trumbull County arrived at the same conclusion in Bojac

Corporation v. Kutevac, 581 N.E.2d 625, 627 ( 1990), as did

the Court of Appeals for Marion County in Martin v. Adult

Parole Authority, No. 9-93-45 (Mar. 4, 1994), moton to

certify the record overruled, 635 N.E.2d 43 (Ohio 1994). The

Ohio Supreme Court has not ruled on the issue, although in

Yaklevich v. Kemp, Schaeffer & Rowe Co., 626 N.F.2d 115,

120 (Ohio 1994), it held that the four-year period in Section

2305.09(D) was applicable to the tort of abuse of process.

5 Petitioners cannot claim to have been surprised by the

lower courts’ decisions that their claim was time-barred. The

Sixth Circuit decided on July 24, 1987, in McSurely, 823 F.2d

at 1005, that the statutes of limitations for Section 1983 ac-

tions and Bivens actions are the same. It decided on March

16, 1989, in Browning, 869 F.2d at 992, that the limitation

12

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREw S. Days, III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

BARBARA L. HERWIG

SUSHMA SONI

Attorneys

APRIL 1995

period in Ohio for Section 1983 claims was two years. Both

of those cases were decided before the date of the search in

this case, March 29, 1989.

YU. S. GOVEKNWENT PRINTING OFFice; 1995 387147 20059