UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
February 23, 1983
KNOLL, MADELIN H., APPELLANT
SPRINGFIELD TOWNSHIP SCHOOL DISTRICT, A POLITICAL SUBDIVISION OF THE COMMONWEALTH OF PENNSYLVANIA; ROMAN, LOUIS A., SUPERINTENDENT, SPRINGFIELD TOWNSHIP SCHOOL DISTRICT; LAWN, JOHN J., HANSHAW, MARIE M., COMMINS, JAMES A., GOREN, SARA LEE, HOCH JR., WILLIAM C., HOGUE JR., E. BURKE, KALISH, SALLY, LIEBERMAN, MAX L. AND TOBIN, HARPUR M., INDIVIDUALLY AND AS MEMBERS OF THE BOARD OF SCHOOL DIRECTORS, SPRINGFIELD TOWNSHIP SCHOOL DISTRICT
699 F.2d 137.
Seitz, Chief Judge, Aldisert, Adams, Gibbons, Hunter, Weis, Garth, Higginbotham, Sloviter and Becker, Circuit Judges.
SUR PETITION FOR REHEARING
The petition for rehearing filed by Appellees in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
Judges Adams, Weis, Garth and Hunter would grant rehearing in banc.
BY THE COURT,
JOHN J. GIBBONS
STATEMENT OF JUDGE ADAMS SUR DENIAL OF PETITION FOR REHEARING
The panel decides that the six-month limitations period of 42 Pa. Cons. Stat. Ann. § 5522(b)(1) (Purdon 1981) is inapplicable to actions brought under 42 U.S.C. § 1983, because six months is so brief as to be inconsistent with the policies of section 1983. This position is taken despite the panel's recognition that in section 1983 actions the federal courts must normally borrow the state limitations period governing analogous causes of action, and that, had the present action been brought "in state court under state law, it would have been subject to the six-month limitations period." 699 F.2d at 141.
In holding that the six-month period is too constricting, the panel breaks with the two other circuits that have decided this issue. In Burns v. Sullivan, 619 F.2d 99, 106-107 (1st Cir. 1980), the court held that a six-month limitation is reasonable in section 1983 cases, and Warren v. Norman Realty Co., 513 F.2d 730, 733-35 (8th Cir. 1975), applied a 180 day limit of a Nebraska statute of limitations to a federal action under 42 U.S.C. § 1982.*fn1
As the panel notes, this Court is not authorized to cure lacunae in federal law by borrowing state statutes of limitations that frustrate national policies. See Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 367, 53 L. Ed. 2d 402, 97 S. Ct. 2447 (1977). But in its most recent declaration on the subject, the Supreme Court warned that state statutes of limitations are normally binding in section 1983 cases:
In § 1983 actions . . . a state statute of limitations and the coordinate tolling rules are more than a technical obstacle to be circumvented if possible. In most cases, they are binding rules of law. In 42 U.S.C. § 1988, Congress "quite clearly instructs [federal courts] to refer to state statutes" when federal law provides no rule of decision for actions brought under § 1983. Robertson v. Wegmann, 436 U.S. 584, 56 L. Ed. 2d 554, 98 S. Ct. 1991 (1978). See also Carlson v. Green, [446 U.S. 14, 22 n.10, 64 L. Ed. 2d 15, 100 S. Ct. 1468 n.10 (1980)]. As we held in Robertson, by its terms, § 1988 authorizes federal courts to disregard an otherwise applicable state rule of law only if the state law is "inconsistent with the Constitution and laws of the United States."
Board of Regents of the University of the State of New York v. Tomanio, 446 U.S. 478, 484-85, 64 L. Ed. 2d 440, 100 S. Ct. 1790 (1980) (footnote omitted).
The Supreme Court in Tomanio took occasion to reiterate its emphasis on "the importance of the policies underlying state statutes of limitations." Id. at 487. To gauge whether state limitations statutes are consistent with the policies underlying section 1983, Tomanio instructed the federal courts that "the state and federal policies which the respective legislatures sought to foster must be identified and compared." Id. at 487.
There is no indication that the opinion in the present case follows Tomanio's direction to give weight to the significant policies underlying the state statute of limitations. Moreover, despite its description of the general policies behind section 1983, the panel has not explained with any precision why the six-month period cannot be squared with those policies. Indeed, much of the same reasoning that the panel employs in rejecting the limitations period of section 5522(b)(1) could equally be applied to strike down any limitations period, for any such period arguably circumscribes the broad sweep of section 1983. The panel has made no attempt to demonstrate with specific reference to the facts of this case that six months was insufficient for the plaintiff to file a complaint. Instead, without citing any evidence or empirical data, it speaks of this period as being too limited for the "average plaintiff." 699 F.2d at 142.*fn2 The panel does not even rely on the special nature of employment discrimination cases; it appears to indicate that six months is too short in all types of section 1983 actions. Thus the panel seemingly would make it impossible to borrow a six-month statute even in section 1983 actions that easily could be commenced within six months. I cannot see why, for example, a prisoner alleging that the warden improperly deprived him of some of his property could not be expected to file a complaint within six months. Yet a large proportion of section 1983 actions are brought by prisoners making allegations such as this.
In sum, I believe that this case warrants rehearing before the entire court because it appears that the panel, in disregard of Tomanio, neither considered the state policies involved nor identified with any specificity the federal policies, and also because I am concerned about the creation of a split among the circuits on this highly important issue.
Judges Hunter, Weis, and Garth join in this statement.