Ingram v. Steven Robert Corp.

• Decision Date: 04 March 1977
• Docket Number: No. 76-3674,76-3674
• Citation: 547 F.2d 1260
• Parties: 14 Fair Empl.Prac.Cas. 721, 13 Empl. Prac. Dec. P 11,557 Calvin INGRAM, Plaintiff-Appellant, v. STEVEN ROBERT CORPORATION et al., Defendants-Appellees. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1260

547 F.2d 1260

14 Fair Empl.Prac.Cas. 721,

13 Empl. Prac. Dec. P 11,557

Calvin INGRAM, Plaintiff-Appellant, v. STEVEN ROBERT CORPORATION et al., Defendants-Appellees.

No. 76-3674

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

March 4, 1977.

R. Edward Massey, Jr., Mobile, Ala., for plaintiff-appellant.

Paul W. Brock, Benjamin T. Rowe, Mobile, Ala., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Alabama.

Before GOLDBERG, CLARK and FAY, Circuit Judges.

GOLDBERG, Circuit Judge:

Calvin Ingram, a black man formerly employed by the defendant, alleges that defendant dismissed him from his job on April 10, 1974 because of his race and his union activities. Plaintiff brought suit under 42 U.S.C. § 1981 and § 1983 on April 28, 1976, seeking reinstatement and an award of back pay. The district court dismissed the § 1983 suit because it found insufficient allegations that defendant, a private Alabama corporation, was operating under color of state law. Ingram does not challenge this decision. The district court dismissed the § 1981 cause of action because Ingram had failed to comply with the one year statute of limitations prescribed by Alabama law for "(a) ctions for any injury to the person or rights of another, not arising from contract . . ." Ala.Code tit. 7, § 26. ¹ On appeal, Ingram does not contest the principle that state limitations statutes circumscribe his federal claim under § 1981; rather, he argues that the district court applied the wrong limitations provision.

I. The Shavian Guideposts

Federal courts must look in the first instance to the applicable state statute of limitations in actions for back pay or similar damages under a federal statute for which Congress failed to provide limitations period. See 42 U.S.C. § 1988; O'Sullivan v. Felix,233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914); Beard v. Stephens, 372 F.2d 685, 688 (5th Cir. 1967).

Whether it should be inferred from Congressional silence that Congress intended that state limitations periods be applied at all is a matter that has perhaps unfortunately troubled historians more than judges. See Note, A Limitation on Action for Deprivations of Federal Rights, 68 Colum.L.Rev. 763 (1968). Instead, the question of selecting one from among many possible state limitations provisions has been, for better or worse, the focus of judicial attention.

To be sure, in deciding the period governing § 1983 we have occasionally heeded the principle that our choice of a state statute of limitations must be based on which statute will best effectuate the Congressional policies underlying § 1983. Thus, in Franklin v. City of Marks, 439 F.2d 665, 669 (5th Cir. 1971), the court refused to be bound by a state statute of limitations so short (10 days) that it impinged on policies underlying § 1983. We have dealt with the abnormal case such as Franklin,, however, without articulating our reasons for applying state law in the normal case. Moreover, in the normal case we have quickly abandoned the pretence that our reason for selecting one among many state limitations provisions is that it best serves federal interests.

For example, one line of cases advises that the choice of a state limitations provision is a matter of determining based on federal law the "essential nature" of the federal claim, and then of determining under state law which limitation period would be applicable to a state claim of the same general category. See Bell v. Aerodex, Inc., 473 F.2d 869, 971 (5th Cir. 1973); Franklin v. City of Marks, supra, 439 F.2d at 669-70; McGuire v. Baker, 421 F.2d 895, 898 (5th Cir. 1970). A second line of cases advises that the choice of a limitations period is based on how a state court applying state law would categorize the action for relief. See Franks v. Bowman Transportation Co., 495 F.2d 398, 405 (5th Cir. 1974), rev'd in part on other grounds, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Knowles v. Carson, 419 F.2d 369 (5th Cir. 1969). Even the first line of cases tends, in practice, to rely heavily on state law in categorizing the claim presented, however, so that references to federal law even in this line tend to be of little import. Federal interests are thus generally subordinated to a mechanical application of state law.

Two recent cases in this circuit, Shaw v. Garrison, 545 F.2d 980 (5th Cir. 1977), and Shaw v. McCorkle, 537 F.2d 1289 (5th Cir. 1976), help provide the guideposts in this area. Shaw v. McCorkle analyzes the two lines of cases adverted to above and concludes that in determining which state statute of limitations applies to an action under § 1983, a federal court should determine first how the state court would categorize the action and then which state limitation period would apply to the action so categorized.

Shaw v. Garrison addressed the question whether state survivorship law or federal common law determined if a § 1983 plaintiff's death prior to trial caused his civil rights claim to abate. The court reasoned that since application of state survival law to the facts of that case would leave plaintiff without a remedy in either federal or state court, the state survivorship law was inconsistent with the broad remedial purposes embodied in the Civil Rights Acts. The court concluded that where state law proves to be an unsuitable vehicle to provide the relief envisioned by § 1983, the federal courts may look beyond the inhospitable law. It held that as a matter of federal common law the civil rights action survived in favor of plaintiff's estate. The Garrison court thus gave full effect to the principle often ignored in the statutes of limitations cases that where resort to state law is had to fill the interstices in federal provisions creating substantive rights, the touchstone must be whether a particular state statute effectuates the Congressional policies underlying the federal acts.

Nonetheless Shaw v. Garrison draws a critical distinction that tells us why the principle of Shaw v. McCorkle controls our treatment of the case at bar. Quoting from the lower court opinion, 391 F.Supp. 1353, the court distinguished between statutes regulating survival, which may entirely bar plaintiffs from ever filing suit, and statutes of limitations, which merely regulate the permissible time for filing suit. ² Because the hardship worked by the former is much more severe than that occasioned by the latter, inhospitable state limitations provisions will carry greater weight than inhospitable survivorship provisions, and in the normal case recourse the state limitations law will be dispositive. If federal interests are affected, they are not so severely restricted when the state limitations provision applies that we need fear the definition of those interests in state terms for purposes of choosing the applicable statute of limitations.

With these guideposts before us, our next task is to decide which Alabama statute of limitations would be applied had this or a similar action been brought in state court.

II. Contract or Tort?

Appellant incorrectly asserts that the district court decision was based on Ala.Code tit. 7, § 26(1), which prescribes a one year period for recovery of wages. ³ This court held § 26(1) to be unconstitutional with respect to back pay actions under the Fair Labor Standards Act in Caldwell v. Alabama Dry Dock, 161 F.2d 83 (5th Cir. 1947). To begin with, the continued vitality of Caldwell is questionable. ⁴ More important, the district court opinion cannot reasonably be construed as relying on § 26(1). We need not discuss whether that court could have relied on § 26(1), and if so whether it should have done so. Rather, we confine ourselves to the question whether the lower court erred in applying § 26, because under either § 26(1) or § 26 the one year statute of limitations would preclude Ingram's suit in the case at bar. ⁵

The appellant urges that the ostensible unconstitutionality of § 26(1) leaves open the field for the Alabama statutes of general application for actions based on implied and written contracts, which bear respective six and three year limitations. See Ala.Code tit. 7, §§ 21, 24. The district court applied the one year provision in Ala.Code tit. 7, § 26, applicable to tort actions not arising from a contract or specifically enumerated rights. Our choice among these statutes will be determined by whether an action for reinstatement and back pay for the employer's discharge of an employee for constitutionally prohibited reasons constitutes an action based on a contract (ex contractu ) or on a right arising independently of the parties' agreement (ex delicto ).

We think it clear that under the circumstances of this case Ingram's assertion of his rights under § 1981 and the fourteenth amendment arose independently of any agreement between him and his employer. Consequently his action was ex delicto, and the district court properly applied § 26.

We are aware that there is some conflicting authority. Compare Buckner v. Goodyear Tire & Rubber Co., 476 F.2d 1287 (5th Cir. 1973), adopting lower court opinion and aff'q 339 F.Supp. 1108, 1118 (N.D.Ala.1972) (applicable statute of limitations in § 1981 suit is § 26 because action is essentially ex delicto ); with Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011, 1017 n.16 (5th Cir. 1971) (dictum that action under § 1981 is essentially ex contractu ). We think the analysis in Buckner is superior, and we should in any event be bound to the holding in that case, as opposed to the dictum in Boudreaux. Moreover, the approach taken in Buckner reflects the approach adumbrated in Shaw v. McCorkle, supra. In Boudreaux, the court categorizes the federal right in federal terms as one designed to "make and enforce contracts." That is of course true, but it is inconsistent with the McCorkle court's suggestion that a federal court substantially rely on state law in...