Hobson v. Brennan

Decision Date16 December 1985
Docket NumberCiv. A. No. 76-1326.
Citation625 F. Supp. 459
PartiesTina HOBSON, et al., Plaintiffs, v. Charles D. BRENNAN, et al., Defendants.
CourtU.S. District Court — District of Columbia

Anne Pilsbury, Washington, D.C., Armand Derfner, Charleston, S.C., for plaintiffs.

David H. White, Dept. of Justice, Washington, D.C., J. Frederick Sinclair, Alexandria, Va., Brian P. Gettings, R. Scott Caulkins, Cohen, Gettings, Alper & Dunham, Arlington, Va., William W. Greenhalgh, Patricia L. Maher, Earl J. Silbert, Schwalb, Donnenfeld, Bray & Silbert, P.C., A. Raymond Randolph, Christopher L. Varner, Randolph & Fruitt, Washington, D.C., for defendants.


OBERDORFER, District Judge.

Defendants are former agents of the Federal Bureau of Investigation ("FBI") who were involved in varying degrees in the FBI COINTELPRO1 program. In June 1984, the Court of Appeals affirmed this Court's order denying defendants' motion for a judgment notwithstanding a jury verdict against them. Hobson v. Wilson, supra. The jury found that defendants had engaged in a complex conspiracy, actionable under 42 U.S.C. § 1985(3),2 to violate First Amendment rights of certain plaintiffs. The Court of Appeals remanded the case to this Court for redetermination of damages and expungement of certain FBI files. On March 25, 1985, the Supreme Court denied defendants' petition for a writ of certiorari. Thereafter, pursuant to the Court of Appeals' remand order, this Court resumed administration of the case.

In the course of these resumed proceedings, defendants moved to dismiss the complaint on the theory that it was time barred by a "specially prescribed" District of Columbia statute of limitations which provides a one-year limitations period "for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment." D.C.Code § 12-301(4) (1981). Defendants argue that, in addition to the contentions which have previously been made on this issue to this Court,3 the Court of Appeals,4 and the Supreme Court,5 the Supreme Court's April 17, 1985 decision in Wilson v. Garcia, ___ U.S. ___, 105 S.Ct. 1938, 85 L.Ed.2d 254, now requires application of the one-year statute rather than the three-year statute which was applied by this Court and upheld by the Court of Appeals. Defendants and plaintiffs agree that defendants' renewed attempt to raise this issue is not precluded by law of the case doctrine, as there has been an intervening change in applicable law. See Plaintiffs' Memorandum of Points and Authorities in Opposition to Defendants' Motion to Dismiss ("Plaintiffs' Memorandum") at 3 n. 1; Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss ("Defendants' Memorandum") at 6 n. 3. All of the defendants renew their motion to dismiss on the ground that the entire cause of action is time barred. In addition, defendant Pangburn has renewed his motion for a new trial, in part because the Court of Appeals set aside the verdict against the members of the District of Columbia Metropolitan Police Department, whom the jury had also found to have been involved in a related conspiracy against plaintiffs.


There is no federal statute of limitations specifically applicable to actions to redress constitutional torts. The federal courts must therefore "borrow" the local common law as modified or changed by statute.6 See Burnett v. Grattan, 468 U.S. 42, 104 S.Ct. 2924, 2929, 82 L.Ed.2d 36 (1984). The District of Columbia statute of limitations provides in relevant part that:

Except as otherwise specifically provided by law, actions for the following purposes may not be brought after the expiration of the period specified below from the time the right to maintain the action accrues:
(4) for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment —1 year.
(8) for which a limitation is not otherwise specially prescribed—3 years.

D.C.Code §§ 12-301(4) and (8) (1981).

Defendants first pleaded the one-year provision to Judge John H. Pratt (to whom this case was originally assigned). Judge Pratt denied the plea without prejudice. Hobson v. Wilson, No. 76-1326 (D.D.C. Nov. 9, 1979). They unsuccessfully renewed the one-year statute plea in this Court both before and after the verdicts against them. See Memorandum and Order of October 29, 1981 at 2; 556 F.Supp. at 1174. The defendants' challenge to the denial of their motions for a directed verdict on statute of limitations grounds focused on the complex fraudulent concealment issue which had been presented to the jury by instructions and by a special verdict form. See 556 F.Supp. at 1174-79; 737 F.2d at 32-42. Only defendant Jones argued in the Court of Appeals that the one year rather than the three year statute applied. Nevertheless, before commencing its discussion of the fraudulent concealment issue the Court of Appeals ruled that:

When no federal statute of limitations governs the period of repose for actions brought under the Civil Rights Act, or under the rationale of Bivens v. Six Unknown Named Agents, 403 U.S. 388 91 S.Ct. 1999, 29 L.Ed.2d 619 ... (1971) a federal court must look to the limitations period applicable to the most nearly analogous state cause of action. Footnote omitted. On that basis, it is clear that the three-year limitations period provided in D.C.Code Ann. § 12-301(8) (1981) controls this case.99 Footnote quoted below.

737 F.2d at 32. In an explanatory footnote, the Court of Appeals went on to state:

99 Section 301 provides a three-year limitations period for claims "... for which a limitation is not otherwise specially prescribed." D.C.Code Ann. § 12-301(4) (1981) provides a one-year limitations period "for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment," and is inapposite. McClam v. Barry, 697 F.2d 366 (D.C.Cir.1983), is not to the contrary. McClam adopted the one-year limitations period because the constitutional claim was for an assault, which is specifically identified in D.C. Code Ann. § 12-301(4). Indeed, McClam specifically distinguished an earlier Bivens action Eikenberry v. Callahan, 653 F.2d 632, 635 n. 11 (D.C.Cir.1981) based on the First Amendment, which had adopted the three-year period. Id. at 372. We reject, as based on a misreading of McClam, any argument that McClam decided that all Bivens actions are controlled by the one-year limitations period.


All defendants then pursued the one-year limitations plea in their Petition for a Writ of Certiorari. The petition argued that:

The decision below conflicts with Garcia v. Wilson, 731 F.2d 640 (10th Cir. 1984), certiorari granted ___ U.S. ___, 105 S.Ct. 79, 83 L.Ed.2d 28 (Oct. 1, 1984).... The court in this case borrowed the three-year limitations period in D.C.Code § 12-301(8) for claims not otherwise "specifically prescribed," rather than the one-year period in D.C.Code § 12-301(4) applicable to actions "for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment." ... Garcia holds that for statute of limitation purposes, actions seeking redress for violation of constitutional rights shall be treated as actions "for injury to personal rights." 731 F.2d at 651. Accordingly, the court in Garcia looked to the state statute applicable to suits for "injury to the person or reputation." For the reasons stated in Garcia v. Wilson, the court of appeals in this case therefore should have applied D.C.Code § 12-201(4), which provides a one-year limitations period for intentional injury to personal rights and reputation. footnote omitted

Petition for a Writ of Certiorari at 22.7

Garcia v. Wilson originated as a section 1983 case brought in New Mexico against a state police officer who allegedly beat plaintiff and sprayed him with tear gas. Also named as a defendant was the Chief of Police, who, plaintiff claimed, failed to adequately supervise the officer directly engaged in the alleged violence. The District Court denied a motion to dismiss the case as time-barred by the New Mexico two-year statute of limitations applicable to its Tort Claims Act. Instead, the District Court selected New Mexico's residual four-year statute. The Court of Appeals affirmed, but selected a different New Mexico statute of limitations — the three-year statute governing "actions for an injury to the person or reputation of any person." N.M.Stat.Ann. § 37-1-8 (1978).

In Wilson v. Garcia, supra, Justice Stevens, speaking for himself and six of his colleagues, affirmed the Tenth Circuit ruling that section 1983 (42 U.S.C. § 1983), is "in reality, `an action for injury to personal rights.'" 105 S.Ct. at 1941. Citing the federal interest in uniformity and certainty, the Court construed § 1988 as "a directive to select, in each State, the one most appropriate statute of limitations for all section 1983 claims." Id. at 1947. The Wilson Court approved the Tenth Circuit's conclusion that "the tort action for the recovery of damages for personal injuries is the best alternative available" for general characterization of section 1983 actions. Id. at 1947. The Court further observed that:

The characterization of all § 1983 actions as involving claims for personal injuries minimizes the risk that the choice of a state statute of limitations would not fairly serve the federal interests vindicated by § 1983. General personal injury actions, sounding in tort, constitute a major part of the total volume of civil litigation in the state courts today....

Id. at 1949 (footnote omitted). The Wilson Court directed that the selection of the appropriate statute in each state should balance between "the substantive policies underlying the federal claim and the policies of repose." Id. at 1944 (footnote omitted). The Court, focusing on section 1983 and without mention of section 1985, noted in this connection that "the high...

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