Wood v. Kelly
| Decision Date | 14 December 2017 |
| Docket Number | No. 17-11055,17-11055 |
| Parties | JOHN W. WOOD, JR., Plaintiff-Appellant, v. JOHN KELLY, successor, President FAU, LAWRENCE GLICK, Senior Associate General Counsel, STACEY SEMMEL, Assistant VP for Financial Affairs, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
D.C. Docket No. 9:16-cv-81521-BB
Appeal from the United States District Court for the Southern District of Florida Before JORDAN, ROSENBAUM, and FAY, Circuit Judges.
John Wood Jr. is a disabled army veteran proceeding pro se. From 2005 to 2006, he submitted dozens of unsuccessful applications to work at Florida Atlantic University ("FAU"). FAU eventually hired him, only to terminate his employment five months later in October 2006. Since that time, he has unsuccessfully challenged FAU's actions in state and federal court, broadly alleging that FAU discriminated against him based upon his status as a veteran, denied him his right to veterans' preference, and denied him due process by terminating his employment without a hearing or other procedural protections.1
In August 2016, Wood filed the complaint that gives rise to this appeal, raising similar allegations against three FAU officials in their individual capacities. He alleged that the three officials created an unlawful pattern and practice of discrimination and retaliation against veterans by failing to implement the requirements of the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. §§ 4301-4335, as implemented by the Equal Employment Opportunity Commission. And by failing to implement the requirements of USERRA, Wood maintained, the individual defendants deprivedhim of his rights to substantive and procedural due process and to equal protection as a "protected person."
All of Wood's claims purportedly traveled under 42 U.S.C. § 1983. He alleged that the defendants violated his federal statutory and constitutional rights under USERRA (Count I); the Fifth, Seventh, and Fourteenth Amendments to the United States Constitution (Count II); and various federal criminal statutes, including 18 U.S.C. §§ 241, 242, 1503, and 1505 (Counts III & IV).
The district court granted the defendants' motion to dismiss the complaint for failure to state a claim under Rule 12(b)(6), Fed. R. Civ. P. Sidestepping the defendants' contention that Wood's complaint was barred by both claim and issue preclusion, the district court found that Wood's § 1983 claims were time barred, having accrued over nine years before the court's decision in May 2017.
We review de novo the grant of a motion to dismiss for failure to state a claim under Rule 12(b)(6), accepting as true the allegations in the complaint and construing them in the light most favorable to the plaintiff. Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010). To survive a Rule 12(b)(6) motion to dismiss, the complaint must allege sufficient facts to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Conclusory allegations of conspiracy or wrongdoing are insufficient to prevent dismissal. Am. Dental Ass'n, 605 F.3d at 1293-94.
We review de novo a district court's interpretation and application of a statute of limitations. Ctr. For Biological Diversity v. Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006). "[A] Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate only if it is apparent from the face of the complaint that the claim is time-barred." La Grasta v. First Union Secs., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (internal quotation marks omitted).
We liberally construe the filings of pro se parties. Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014). However, we may not act as "de facto counsel" or rewrite an otherwise deficient pleading. Id.
"Statutes of limitations serve important purposes in promoting the fair administration of justice." Arce v. Garcia, 434 F.3d 1254, 1260 (11th Cir. 2006). Their primary purpose is to assure fairness to defendants by preventing surprises and minimizing spoliation of evidence. Id. Statutes of limitations also relieve the courts of "the burden of trying stale claims when a plaintiff has slept on his rights." Id. at 1260-61 (quoting Burnett v. N.Y. Cent. R. Co., 380 U.S. 424, 427 (1965)).
The ordinary rule is that "[f]ederal courts apply their forum state's statute of limitations for personal injury actions to actions brought pursuant to 42 U.S.C. § 1983." Uboh v. Reno, 141 F.3d 1000, 1002 (11th Cir. 1998). In Florida, the limitations period for a personal injury action is four years. Fla. Stat. § 95.11(3); see Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003).
In Foudy v. Indian River County Sheriff's Office, however, we indicated that the statute of limitations for a § 1983 claim based on a violation of a federal statute enacted after December 1, 1990, is governed by 28 U.S.C. § 1658, not the forum state's personal injury limitations period. 845 F.3d 1117, 1123-24 (11th Cir. 2017); see also City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 123 n.5 (2005) (). Congress enacted § 1658 in 1990, and it provides a 4-year, "catch-all" limitations period applicable to "civil action[s] arising under an Act of Congress enacted after" December 1, 1990. 28 U.S.C. § 1658(a). Claims "arising under" an Act of Congress are those "made possible" by that Act. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2005).
Here, the district court properly concluded that Wood's § 1983 constitutional claims (Count II) arising out of FAU's actions in 2005 and 2006 are time barred. These constitutional claims are subject to the four-year limitations period in Florida for personal injury actions. See McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008) (). As Wood indicates in his complaint, he was aware that his cause of action accrued by 2006, which is well outside of thefour-year limitations period. See Chappell, 340 F.3d at 1283. Accordingly, Count II was properly dismissed as time barred.
As for Counts III and IV, these claims fail for two independent reasons. First, the federal statutes on which Wood relies, including 18 U.S.C. §§ 241, 242, and 1503, "are criminal in nature and provide no civil remedies." Hanna v. Home Ins. Co., 281 F.2d 298, 303 (5th Cir. 1960).2 None of these statutes creates an individual right enforceable through § 1983. See Collier v. Dickinson, 477 F.3d 1306, 1310 (11th Cir. 2007) (). Second, even if Wood could bring a claim under § 1983 based on these criminal statutes, these claims are likewise clearly time barred because§ 1658's catch-all four-year limitations period would apply. See Foudy, 845 F.3d at 1123-24.
That leaves Count I, which presents a § 1983 claim based on violations of USERRA. The district court concluded that this § 1983 claim, like most § 1983 claims, was subject to the forum state's statute of limitations for personal injury actions. That appears to have been in error.3
Because Count I was based on a violation of USERRA, a federal statute enacted after December 1, 1990, it was, according to Foudy, governed by § 1658, not the forum state's statute of limitations. See 845 F.3d at 1123-24; see also Jones, 541 U.S. at 382. Normally that would mean § 1658's four-year limitations period applies, which, in this case, was the same as Florida's limitations period. And if the federal catch-all limitations period applies, Wood's § 1983 claim based on violations of USERRA, like his other claims, would clearly be time barred. So any error would be harmless.
38 U.S.C. § 4327(b). The phrase "this chapter" refers to USERRA. See Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th Cir. 2013). Section § 4327(b) was added in 2008 by the Veterans' Benefit and Improvement Act of 2008 ("VBIA"), Pub. L. No. 110-389, 122 Stat. 4145 (Oct. 10, 2008). Id. While Wood's claims accrued before the enactment of that provision, the four-year limitations period hadnot yet run on these claims when § 4327(b) went into effect. So applying § 4327(b) would not have the impermissible effect of reviving otherwise time-barred claims. See id. at 837 ().
That raises the question of whether § 4327(b) governs over § 1658's catch-all limitations period. In other words, can we borrow the unlimited limitations period for USERRA claims and attach it to § 1983 actions asserting violations of USERRA? We think not.4
The Supreme Court confronted a similar issue in Abrams. In that case, the Court addressed whether a plaintiff could bring under § 1983 a claim to enforce the provisions of a federal statute, the Telecommunications Act of 1996 ("TCA"). 544 U.S. at 115. In the course of holding that § 1983 was incompatible with the remedy provided in the TCA, the Court addressed what limitations periods apply to claims...
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