# Opposition Brief — Kurinsky v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1082

## Text

Supteme Court U.S
SiLe& Y
\
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,

ttt

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
al ne A ERE ES SC a a 1
a ccenaiemnnionnentaiersmmestonnnne 2
BIE isc seoticenssnnn seemeeiertnesevernenameneccenmencusmnempnneennesmenennnsees 4
aS ita siealidtlisiacapetibenniebeanenistinns 12
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.:
Bae saicencivcinisenincidnattetsianetnatensestenhenainiaaaatinsaiagi 2
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):
Oe Fe criisccearenscesnsicnnerontereennicmnapanmendpidibenali 3
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1200%3A2. Public record. Not legal advice.