De Malherbe v. Intern. U. of Elevator Constructors

Decision Date12 April 1978
Docket NumberNo. C-76-1668-CBR.,C-76-1668-CBR.
Citation449 F. Supp. 1335
PartiesJohn R. DE MALHERBE, Plaintiff, v. INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS, International Union of Elevator Constructors Local No. 8, National Elevator Industry, Inc., Defendants.
CourtU.S. District Court — Northern District of California

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Dennis John Woodruff, David R. Lipson, Kutsko, Moran & Mullin, San Francisco, Cal., for plaintiff.

Brundage, Beeson & Pappy, Stephen H. Naiman, Richard J. Davis, Jr., Los Angeles, Cal., O'Donoghue & O'Donoghue, Patrick C. O'Donoghue, Joyce A. Mader, Washington, D. C., for defendants IUEC and IUEC Local No. 8.

Voltz, Cook & Orenstein, Charles E. Voltz, Morton H. Orenstein, San Francisco, Cal., Putney, Twombly, Hall & Hirson, Charles O. Strahley, New York City, for defendants National Elevator Industry, Inc.

MEMORANDUM OF OPINION

RENFREW, District Judge.

Defendants' motions to dismiss require the Court to decide whether plaintiff's implied cause of action for damages under the Constitution is barred by the applicable statute of limitations.

I. FACTUAL AND PROCEDURAL BACKGROUND

The factual and procedural background of this action is described in detail in the Court's earlier Memorandum of Opinion filed herein on September 28, 1977 (438 F.Supp. 1121 (N.D.Cal.1977)). Plaintiff claims that defendants deprived him of employment opportunities because he is an alien. His claim under 42 U.S.C. § 1981 dismissed and his claims under 42 U.S.C. § 1985 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., abandoned, plaintiff now relies solely on the legal theory that defendants' conduct constituted federal action for the purposes of the Fifth Amendment and that discrimination against aliens by this federal instrumentality is illegal under the Due Process Clause of the Fifth Amendment.

The alleged discrimination against plaintiff occurred on March 26, 1974. Almost two and a half years later, on August 9, 1976, plaintiff filed his original complaint, which relied exclusively on Title VII and § 1985. Another eight months passed until plaintiff filed his first amended complaint on March 4, 1977, which rested on 42 U.S.C. § 1981. Finally, on June 20, 1977, more than three years after defendants allegedly discriminated against him, plaintiff amended his complaint to allege for the first time that his rights under the Fifth Amendment had been violated.

Defendants filed motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure on a variety of grounds: (1) that plaintiff failed to join indispensable parties, the United States Department of Labor and the Elevator Industry National Recruitment and Training Program (EINRTP); (2) that defendants have the institutional authority to discriminate against aliens under the standards of Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976), on remand, 435 F.Supp. 37 (N.D.Cal.1977), and that their conduct toward plaintiff "substantially advanced", id., 435 F.Supp. at 44, or was rationally related to the federal interests at stake; and (3) that plaintiff's action is barred by the statute of limitations. The Court postponed argument and decision on the first two of those contentions because of its preliminary tentative view that the statute of limitations issue was most likely to be dispositive. Based on its consideration of the arguments of counsel, and on its own research and analysis, the Court has decided to deny defendants' motions to dismiss on statute of limitations grounds.

II. GENERAL PRINCIPLES
A. Federal Actions without Limitations Provisions

Congress has not adopted a statute of limitations for implied causes of actions for damages under the Constitution, which were first recognized by the Supreme Court in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). When Congress fails to create a federal statute of limitations for federal causes of action, courts generally apply the statute of limitations of the most analogous cause of action under the law of the state in which the federal cause of action arises. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1971) (§ 1981 actions); Beard v. Robinson, 563 F.2d 331, 334 (7 Cir. 1977) (Bivens actions); Regan v. Sullivan, 557 F.2d 300, 303 (2 Cir. 1977) (Bivens actions). An exception to this general rule is made when the borrowing of an otherwise applicable state statute of limitations "would be inconsistent with the underlying policies of the federal statute." Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 367, 97 S.Ct. 2447, 2455, 53 L.Ed.2d 402 (1977). "A special federal statute of limitations is created, as a matter of federal common law, only when the need for uniformity is particularly great or when the nature of the federal right demands a particular sort of statute of limitations." Chevron Oil Co. v. Huson, 404 U.S. 97, 104, 92 S.Ct. 349, 354, 30 L.Ed.2d 296 (1971). An alternative to fashioning a new common-law federal statute of limitations is to apply a federal statute of limitations for an analogous or closely related federal cause of action. See McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272 (1958) (federal statute of limitations for Jones Act suits also applies to unseaworthiness suits).

Courts have a degree of freedom not only to decide whether to borrow a state statute of limitations but also to decide which of several analogous statute statutes should be borrowed. The "characterization of this action for the purpose of selecting the appropriate state limitations provision is ultimately a question of federal law." Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 706, 86 S.Ct. 1107, 1113, 16 L.Ed.2d 192 (1966); Shaw v. McCorkle, 537 F.2d 1289, 1292-1293 & n. 5 (5 Cir. 1976); Smith v. Cremins, 308 F.2d 187, 189 (9 Cir. 1962); Moviecolor Ltd. v. Eastman Kodak Co., 288 F.2d 80, 83 (2 Cir.), cert. denied, 368 U.S. 821, 82 S.Ct. 39, 7 L.Ed.2d 26 (1961). The "question of which local limitations period is appropriate calls for a consideration of the objectives of the substantive federal statute and how they can best be achieved." Douglass v. Glenn E. Hinton Investments, Inc., 440 F.2d 912, 915 (9 Cir. 1971). In cases where the federal court "must choose among the several state statutes," it should "apply the one which best effectuates the federal policy at issue." Charney v. Thomas, 372 F.2d 97, 100 (6 Cir. 1967); Peterson v. Fink, 515 F.2d 815, 816 & n. 3 (8 Cir. 1975).

Federal courts do not have unlimited freedom to pick and choose among analogous state statutes. They should adopt the characterization of the action that the state would use to select an appropriate statute of limitation, "unless that characterization is unreasonable or otherwise inconsistent with federal policy." Auto Workers v. Hoosier Cardinal Corp., supra, 383 U.S. at 706, 86 S.Ct. at 1113. Not only is the federal court's determination of "the nature of the right conferred by the federal statute" circumscribed, but "the federal court accepts the state's interpretation of its own statutes of limitations * * *." Smith v. Cremins, supra, 308 F.2d at 189 (footnote omitted); Note, Federal Statutes Without Limitations Provisions, 53 Colum.L.Rev. 68, 71 (1953).

The selection of an appropriate state statute of limitations involves both state and federal questions. The state statute must meet two criteria: (1) it must apply to analogous state causes of action, a predominantly state law question, and (2) its application must be consistent with the federal policies of the federal cause of action, a federal question. If a federal court can find no state statute which is both applicable to analogous state actions and consistent with federal policies, it must create a new federal statute of limitations.

B. Limitations Periods for Bivens Actions

In considering the first criterion for borrowing — the comparability of the federal cause of action with the state cause of action to which the state statute of limitations applies — the Court must recognize the unique characteristics of a constitutional cause of action. There are "fundamental differences between a civil rights action and a common law tort," Beard v. Robinson, supra, 563 F.2d at 336; see Briley v. State of California, 564 F.2d 849, 854 n. 4 (9 Cir. 1977); and indeed the substantiality of those differences led the Supreme Court to infer a right of action for damages from the Constitution despite the availability of common law remedies. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. at 392-395, 91 S.Ct. 1999. Like 42 U.S.C. § 1983 which derives from it, the Constitution "clearly creates rights and imposes obligations different from any which would exist at common law in the absence of statute." Smith v. Cremins, supra, 308 F.2d at 190.

Nevertheless, it is important to remember that the prerequisite for borrowing a state statute of limitations is not that the state causes of action to which it applies are identical to the federal cause of action. Borrowing requires only that the state and federal causes of action are analogous. Some differences between state and federal causes of action are virtually inevitable, and they may be completely irrelevant to the considerations affecting the selection of a limitations period. Despite differences between state and federal constitutional rights, "the interests protected by a particular branch of the common law of torts may parallel closely the interests protected by a particular constitutional right." Carey v. Piphus, ___ U.S. ___, 98 S.Ct. 1042, 1049, 55 L.Ed.2d 252 (1978). That is unquestionably true of some constitutional torts, and it may even be that "many if not most constitutional torts have analogies in the common law." Expeditions Unlimited Aquatic Enterprises, Inc. v....

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