In The

Supreme Court of the United States




Decided June 8, 1983

Justice O’Connor, Dissenting

Topic: Unions*Court vote: 7–2
Note: No other Justices joined this opinion.
Citation: 462 U.S. 151 Docket: 81–2386Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, dissenting.

As the Court recognizes, "resort to state law [is] the norm for borrowing of limitations periods." Ante at 462 U. S. 171. When federal law is silent on the question of limitations, we borrow state law in the belief that, given our longstanding practice and congressional awareness of it, we can safely assume, in the absence of strong indications to the contrary, that Congress intends by its silence that we follow the usual rule. [ Footnote 3/1 ] In Auto Workers v. Hoosier Cardinal Corp., 383 U. S. 696 (1966), we applied the "norm" to a suit under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. I see no reason in these cases to depart from our usual practice of borrowing state law, for we have no contrary indications strong enough to outweigh our ordinary presumption that Congress' silence indicates a desire that we follow the ordinary rule. As a result, I would look to state law for a limitations period. For the reasons given by JUSTICE STEVENS in his separate opinion in United Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 451 U. S. 72 -74 (1981), I think that a malpractice action against an attorney provides the closest analogy to an employee's suit against his union for breach of the duty of fair representation, and I would apply the State's statute of limitations for such an action here. In DelCostello's action against his employer, I, like JUSTICE STEVENS, would follow Mitchell. [ Footnote 3/2 ]


[ Footnote 3/1 ]

I believe, basically for the reasons given by the Court, ante at 462 U. S. 159 -161, n. 13, that our practice of borrowing state periods of limitations depends largely on this general guide for divining congressional intent. See, e.g., Auto Workers v. Hoosier Cardinal Corp., 383 U. S. 696, 383 U. S. 704 (1966); Holmberg v. Armbrecht, 327 U. S. 392, 327 U. S. 395 (1946). I agree with the Court that the Rules of Decision Act, 28 U.S.C.§ 1652, only puts the question, for it simply requires application of state law unless federal law applies. See ante at 462 U. S. 159 -161, n. 13. Therefore, I am unable to join JUSTICE STEVENS' dissent. My disagreement with the Court arises because I do not think that federal law implicitly rejects the practice of borrowing state periods of limitations in this situation.

[ Footnote 3/2 ]

It is quite appropriate to apply Mitchell retroactively. Mitchell did not represent a "clear break" with past law, see Mitchell, 451 U.S. at 451 U. S. 61 -62, application of its rule in this case would further the goal of promoting early finality for arbitral awards, id. at 451 U. S. 63, and there is no inequity in applying the rule here. See Lawson v. Truck Drivers, Chauffeurs & Helpers, 698 F.2d 250, 254 (CA6 1983); see generally Chevron Oil Co. v. Huson, 404 U. S. 97 (1971).

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