In The

Supreme Court of the United States




Decided April 17, 1985

Justice O’Connor, Dissenting

Topic: Civil Rights*Court vote: 7–1
Note: No other Justices joined this opinion.
Citation: 471 U.S. 261 Docket: 83–2146Audio: 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.

Citing "practical considerations," the Court today decides to jettison a rule of venerable application and adopt instead one "simple, broad characterization of all § 1983 claims." Ante at 471 U. S. 272. Characterization of § 1983 claims is, I agree, a matter of federal law. But I see no justification, given our longstanding interpretation of 42 U.S.C. § 1988 and Congress' awareness of it, for abandoning the rule that courts must identify and apply the statute of limitations of the state claim most closely analogous to the particular § 1983 claim. In declaring that all § 1983 claims, regardless of differences in their essential characteristics, shall be considered most closely analogous to one narrow class of tort, the Court, though purporting to conform to the letter of § 1988, abandons the policies § 1988 embodies. I respectfully dissent.


The rule that a federal court adjudicating rights under § 1983 will adopt the state statute of limitations of the most closely analogous state law claim traces its lineage to M'Cluny v. Silliman, 3 Pet. 270 (1830), Campbell v. Haverhill, 155 U. S. 610 (1895), and O'Sullivan v. Felix, 233 U. S. 318 (1914). These opinions held that, where "Congress... could have, by specific provision, prescribed a limitation, but no specific provision [was] adduced," O'Sullivan v. Felix, supra,at233 U. S. 322, "Congress... intended to subject such action to the general laws of the State applicable to actions of a similar nature" and "intended that the remedy should be enforced in the manner common to like actions within the same jurisdiction,"Campbell v. Haverhill, supra,at155 U. S. 616. With respect to the borrowing of state law in § 1983 claims, Congress explicitly provided that, absent a suitable federal law provision,

the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction... is held... shall be extended to and govern the said courts in the trial and disposition of the cause.

42 U.S.C. § 1988. This Court has consistently interpreted § 1988 as instructing that the rule applicable to the analogous state claim shall furnish the rule of decision "so far as the same is not inconsistent with the Constitution and the laws of the United States." Ibid. See, e.g., Board of Regents v. Tomanio, 446 U. S. 478 (1980); Robertson v. Wegmann, 436 U. S. 584 (1978); Johnson v. Railway Express Agency, Inc., 421 U. S. 454 (1975). Cf. Auto Workers v. Hoosier Cardinal Corp., 383 U. S. 696 (1966).

In Johnson v. Railway Express Agency, supra, the Court described the policies behind Congress' decision to borrow the most appropriate state limitations period:

Although any statute of limitations is necessarily arbitrary, the length of the period allowed for instituting suit inevitably reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting prosecution of stale ones.... In borrowing a state period of limitation for application to a federal cause of action, a federal court is relying on the State's wisdom in setting a limit... on the prosecution of a closely analogous claim.

421 U.S. at 421 U. S. 463 -464. See also Board of Regents v. Tomanio, supra; 26 U. S. Morrison, 1 Pet. 351, 26 U. S. 360 (1828) (Story, J.) (statutes of limitations guard against "stale demands, after the true state of the transaction may have been forgotten"). Plainly, the legislative judgment to which this Court has traditionally deferred is not some purely arbitrary imposition of a conveniently uniform time limit. For example, a legislature's selection of differing limitations periods for a claim sounding in defamation and one based on a written contract is grounded in its evaluation of the characteristics of those claims relevant to the realistic life expectancy of the evidence and the adversary's reasonable expectations of repose. See United States v. Kubrick, 444 U. S. 111, 444 U. S. 117 (1979); Burnett v. New York Central R. Co., 380 U. S. 424, 380 U. S. 426 -427 (1965). See, e.g., 42 Pa.Cons.Stat.Ann. (Purdon, vol. covering §§ 101-1700, 1981), pp. xvi-xvii (limitations periods revised "to conform to the modern principle that claims based on conduct, and hence heavily relying on unwritten evidence, should have relatively short statutes of limitations, so as to bring them to trial... before memories have faded").

Despite vocal criticism of the "confusion" created by individualized statutes of limitations, most Federal Courts of Appeals and state courts have continued the settled practice of seeking appropriate factual analogies for each genus of § 1983 claim. See, e.g., Gashgai v. Leibowitz, 703 F.2d 10 (CA1 1983); McClam v. Barry, 225 U.S.App.D.C. 124, 697 F.2d 366 (1983), overruled on other grounds, Brown v. United States, 239 U.S.App.D.C. 345, 742 F.2d 1498 (1984); Blake v. Katter, 693 F.2d 677 (CA7 1982); White v. United Parcel Service, 692 F.2d 1 (CA5 1982); Kilgore v. City of Mansfield, Ohio, 679 F.2d 632 (CA6 1982); Polite v. Diehl, 507 F.2d 119 (CA3 1974) (en banc); Miller v. City of Overland Park, 231 Kan. 557, 646 P.2d 1114 (1982); Sena School Bus Co. v. Santa Fe Board of Education, 677 P.2d 639 (N.M.App.1984); Arquette v. Hancock, 656 S.W.2d 627 (Tex.App.1983); Moore v. McComsey, 313 Pa.Super. 264, 459 A.2d 841 (1983); Leese v. Doe, 182 N.J.Super. 318, 440 A.2d 1166 (1981). As these courts have recognized:

The variety of possible claims that might be brought under section 1983 is unlimited, ranging from simple police brutality to school desegregation cases. To impose one statute of limitations for actions so diverse would be to disregard the unanimous judgments of the states that periods of limitations should vary with the subject matter of the claim. While the present system of reference to these many state limits is not perfect in operation, it surely preserves some of the judgments that have been made about what appropriate periods of limitation should be for causes of action diverse in nature.

Note, Choice of Law Under Section 1983, 37 U.Chi.L.Rev. 494, 504 (1970).


The majority concedes that,

[b]y adopting the statute governing an analogous cause of action under state law, federal law incorporates the State's judgment on the proper balance between the policies of repose and the substantive policies of enforcement embodied in the state cause of action.

Ante at 471 U. S. 271. Yet the Court posits, without any serious attempt at explanation, that a § 1983 claim differs so fundamentally from a state law cause of action that "any analogies to those causes of action are bound to be imperfect." Ante at 471 U. S. 272. The only fundamental differences the Court identifies -§ 1983's "uniqueness," its "high purposes," its "supplementary" nature -in no way explain the determination that a single inflexible analogy should govern what the Court concedes is the "wide diversity" of claims the § 1983 remedy embraces. Ante at 471 U. S. 275.

Thus, with hardly a backward look, the majority leaves behind a century of precedent. See, e.g., Campbell v. Haverhill, 155 U. S. 610 (1895). Inspired by "the federal interests in uniformity, certainty, and the minimization of unnecessary litigation," the Court suddenly discovers that § 1988 "is fairly construed as a directive to select, in each State, the one most appropriate statute of limitations for all § 1983 claims." Ante at 471 U. S. 275. This fact, of course, escaped the drafters of the Civil Rights Acts, who referred the courts only to general state law principles. Groping to discern what the 42d Congress would have done had it "expressly focused on the issue decided today," the Court "believes" that "the 42d Congress... would have characterized § 1983 as conferring a general remedy for injuries to personal rights." Ante at 471 U. S. 278.

The Court's all-purpose analogy is appealing; after all, every compensable injury, whether to constitutional or statutory rights, through violence, deception, or broken promises, to the person's pocketbook, person, or dignity, might plausibly be described as a "personal injury." But so sweeping an analogy is no analogy at all. In all candor, the Court has perceived a need for uniformity and has simply seized the opportunity to legislate it. The Court takes this step even though a number of bills proposed to recent Congresses to standardize § 1983 limitations periods have failed of enactment, see, e.g., S. 436, 99th Cong., 1st Sess. (1985); S.1983, 96th Cong., 1st Sess. (1979); H.R. 12874, 94th Cong., 2d Sess. (1976), a fact that the Court would normally interpret as a persuasive indication that Congress does not agree that concerns for uniformity dictate a unitary rule. See Ford Motor Credit Co. v. Milhollin, 444 U. S. 555, 444 U. S. 565 (1980) ("[C]aution must temper judicial creativity in the face of... legislative silence"); Robertson v. Wegmann, 436 U.S. at 436 U. S. 593, and n. 11; Auto Workers v. Hoosier Cardinal Corp., 383 U.S. at 383 U. S. 704.

As well as co-opting federal legislation, the Court's decision effectively forecloses legislative creativity on the part of the States. Were a State now to formulate a detailed statutory scheme setting individualized limitations periods for various § 1983 claims, drawing upon policies regarding the timeliness of suits for assault, libel, written contract, employment disputes, and so on, the Supremacy Clause would dictate that the blunt instrument announced today must supersede such legislative fine-tuning. Presumably, today's decision would preempt such legislation even if the State's limitations period in a given case were more generous than the tort rule that the Court today mandates invariably shall apply. In the case of Blake v. Katter, 693 F.2d 677 (CA7 1982), for example, a plaintiff who claimed deprivation of liberty through false arrest enjoyed the benefit of Indiana's generous 5-year statute for claims against public officials. The same plaintiff would now find his § 1983 cause of action foreclosed by the comparatively meager 2-year statute governing injuries to the person. Id. at 679-680.

In exchange for the accrued, collective wisdom of many legislatures, Bell v. Morrison, 1 Pet. at 26 U. S. 360, the Court gains only a half measure of uniformity. The Court has heretofore wisely disavowed uniformity as a value not warranting "displacement of state statutes of limitations for civil rights actions." See Board of Regents v. Tomanio, 446 U.S. at 446 U. S. 489 ; Robertson v. Wegmann, supra, at 436 U. S. 584 -585, and n. 11. True, the Court's decision means that all § 1983 claims in a given State must be brought within a single set period. Yet even the promise of uniformity within each State is illusory. In achieving statewide symmetry among civil rights claims, the Court creates fresh problems of asymmetry that are of far greater moment to the local practitioner. Any lawyer knows that § 1983 claims do not occur in splendid isolation; they are usually joined with claims under state tort or contract law arising out of the same facts. In the end, today's decision saves neither judges nor local practitioners any headaches, since for 150 years characterization of the state law claims with reference to the relevant facts has been a routine prerequisite to establishing the applicable statute of limitations. As one state high court noted:

We do not believe that it was the intent of Congress in enacting § 1983 to establish a cause of action with a different statute of limitations than that provided by the state for common law or state statutory action on the identical set of facts.

Miller v. City of Overland Park, 231 Kan., at 560-562, 646 P.2d at 1116-1118. Accord, Campbell v. Haverhill, 155 U.S. at 155 U. S. 616. Such will be the inevitable result of the Court's decision. For example, under the newly revised Pennsylvania statutory scheme at issue in today's companion case, Springfield Township School District v. Knoll, post, p. 471 U. S. 288, a state law claim for libel or slander will be stale in one year, 42 Pa.Cons.Stat. § 5523(1)(1982), but a § 1983 claim based on the same facts can still be filed after two years, § 5524(2). More puzzling still, a § 1983 claim for violation of constitutional rights arising out of a breach of contract will be foreclosed in two years, but its state law counterpart based on the identical breach will remain fresh and litigable at six years. § 5527(2). This sort of half-baked uniformity is a poor substitute for the careful selection of the appropriate state law analogy.

Today's decision does not so much resolve confusion as banish it to the lower courts. The Court's new analogy lacks any magical power to conjure uniformity where diversity is the natural order. In fact, the rule the Court adopts failed in application literally before the ink of the Tenth Circuit's decision was dry. The decision of the Court of Appeals for the Tenth Circuit in this case, affirmed today, was only one of four handed down on the same day in a valiant attempt to fix limitations periods for the entire Tenth Circuit. Kansas law conveniently supplied a 2-year statute for "injury to the rights of another," see Hamilton v. City of Overland Park, 730 F.2d 613 (1984); but Utah law contained no such provision, see Mismash v. Murray City, 730 F.2d 1366 (1984) (selecting Utah's 4-year residuary statute, absent any statute for personal injury). Colorado law defied the newly minted rule by supplying not one but two periods that govern various injuries to personal rights. McKay v. Hammock, 730 F.2d 1367 (1984). The Tenth Circuit resolved its dilemma by declaring both limitations periods "irrelevant" and instead selecting Colorado's 3-year residuary statute. Id. at 1370. As these cases demonstrate, there is no guarantee state law will obligingly supply a limitations period to match an abstract analogy that may have little relevance to the forum State's limitations scheme.

As Professor Mistakin remarked regarding federal choice-of-law rules, often "the call for uniformity'" is not so much grounded in any practical necessity as in a "desire for symmetry of abstract legal principles and a revolt against the complexities of a federated system." Mistakin, The Variousness of "Federal Law": Competence and Discretion in the Choice of National and State Rules for Decision, 105 U.Pa.L.Rev. 797, 813 (1957). See also Hart, The Relations Between State and Federal Law, 54 Colum.L.Rev. 489, 539-540 (1954) (we must have "the wit not to be deluded by little-minded assumptions about the value of uniformity and symmetrical organization charts," id. at 542). Though the task of characterization is admittedly not "uncomplicated," ante at 471 U. S. 275, it is nevertheless a routine feature of state procedural law, a task that is handled daily by the same judges, lawyers, and litigants as rely on § 1983, often in the same actions. It was Congress' choice in 1866, when it incorporated by reference "the common law, as modified... by... the statutes of the [forum] State," to forgo legislating a simplistic rule, and to entrust judges with the task of integrating a federal remedy into a federal system.

Therefore, I would reverse the Court of Appeals' scholarly but ultimately flawed attempt to impose a single state limitations period for all § 1983 claims. Because I would apply the statute of limitations New Mexico applies to state claims directly analogous to the operative facts of this case, I respectfully dissent.

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