Hussey v. Sullivan, s. 80-1671

• Decision Date: 19 June 1981
• Docket Number: 80-1713,Nos. 80-1671,s. 80-1671
• Citation: 651 F.2d 74
• Parties: Edward C. HUSSEY, Plaintiff-Appellant, v. James Leo SULLIVAN, et al., Defendants-Appellees. Edward C. HUSSEY, Plaintiff-Appellee, v. James Leo SULLIVAN, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 74

651 F.2d 74

Edward C. HUSSEY, Plaintiff-Appellant, v. James Leo SULLIVAN, et al., Defendants-Appellees.

Edward C. HUSSEY, Plaintiff-Appellee, v. James Leo SULLIVAN, et al., Defendants-Appellants.

Nos. 80-1671, 80-1713.

United States Court of Appeals First Circuit.

Argued May 5, 1981.

Decided June 19, 1981.

John D. McElhiney, Woburn, Mass., with whom Wayne A. Perkins, and McSweeney, Snow, Sheehan & Perkins, Somerville, Mass., were on brief, for Edward C. Hussey.

Edward D. Kalman, Boston, Mass., with whom Kenneth A. Behar, Barbara J. Sproat, and O'Leary, Behar & Kalman, Boston, Mass., were on brief, for City Officials of the City of Cambridge.

Francis X. Bellotti, Atty. Gen., and E. Michael Sloman, Asst. Atty. Gen., Boston, Mass., on brief for the Personnel Administrator for the Commonwealth of Massachusetts.

Before BOWNES and BREYER, Circuit Judges, and WYZANSKI, ^* Senior District Judge.

PER CURIAM.

Plaintiff-appellant, Edward C. Hussey, appeals the district court's ruling 498 F.Supp. 594, that his civil rights action based on 42 U.S.C. §§ 1983 and 1985(3) was barred by the six months limitation mandated by Mass.Gen.Laws Ann. ch. 31, § 42, which it found to be the state law "most analogous" to appellant's claim. We affirm.

Plaintiff, a police officer for the City of Cambridge, Massachusetts, brought this action after his name had been omitted from a civil service eligibility list for promotion to sergeant. The plaintiff claimed that he had been bypassed for promotion for two reasons: (1) personal animosity and ill will between himself and the then chief of police (now deceased); and (2) his active and vocal participation in the Cambridge Patrolmen's Association plus his outspoken criticism of both the administration of the police department and political interference in its affairs by members of the Cambridge City Counsel.

In Burns v. Sullivan, 619 F.2d 99 (1st Cir.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980), we considered the appeal of another officer whose name was omitted from the same list. Burns claimed, inter alia, that he had been deprived of equal protection of the laws because of racial discrimination. In affirming the district court's grant of summary judgment for defendants, we held that Burns' equal protection claim was barred by the Massachusetts statute of limitations specifically applicable to such claims when brought in the state court, Mass.Gen.Laws Ann. ch. 151B, § 5. ¹ We stated:

It is now well established that the federal courts will look to the state statute or remedy "most analogous" to the particular civil rights cause of action to determine the time limitation under the Civil Rights Acts. Runyon v. McCrary, 427 U.S. 160, 180, 96 S.Ct. 2586, 2599, 49 L.Ed.2d 415 (1976); Ramirez de Arellano v. Alvarez de Choudens, 575 F.2d 315, 318 (1st Cir. 1978).

Burns at 105. To ascertain the "most analogous" state statute of limitations requires

consideration of four questions: (1) the nature of the federal cause of action, see Davis v. United States Steel Supply, 581 F.2d 335, 337 (3d Cir. 1978); (2) the analogous state causes of action; (3) the state statutes of limitations for those causes of action; and (4) which of the state statutes of limitations is the most appropriate under federal law, see Johnson v. Railway Express Agency, Inc., 421 U.S. (454) at 462 n.7, 95 S.Ct. (1716) at 1721 n.7 (44 L.Ed.2d 295). See generally Ware v. Colonial Provision Co., Inc., 458 F.Supp. 1193, 1194-95 (D.Mass.1978).

Burns at 105. See United Parcel Service v. Mitchell, --- U.S. ---- - ----, 101 S.Ct. 1559, 1562, 67 L.Ed.2d 732 (1981). Using those criteria in Burns, we applied the six months statute of limitations of the Massachusetts statute governing claims of racial discrimination, Mass.Gen.Laws Ann. ch. 151B, § 5.

Although the legal basis for Hussey's complaint differs from that in Burns, the district court properly adhered to the principle of Burns in ascertaining the statute of limitations applicable to the plaintiff's claim. Hussey's attempt to distinguish his action from Burns on the ground that there is no Massachusetts law exactly on point, as there was in Burns, depends on a distinction that makes no difference. The district...