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REGAN v. SULLIVAN

July 30, 1976

JAMES F. REGAN, Plaintiff,
v.
JOSEPH F. SULLIVAN, GEORGE VAN NOSTRAND, FRANCIS R. JULES, DONALD J. GRATTAN, JOHN F. CALLAGHAN, individually and as a member of the New York City Police Department; JAMES M. HARKINS, individually and as a member of the New York City Police Department; and HOWARD GREENWALD, individually and as a member of the New York City Police Department, Defendants



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

 NEAHER, District Judge

 This is a civil action for money damages for alleged violations of plaintiff's constitutional and civil rights by federal agents and New York City police officers stemming from his arrest and detention on November 15-16, 1973. Plaintiff's cause of action against the federal defendants is founded directly upon the Constitution as defined in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971); against the police officers under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and against all defendants on a claim of conspiracy under 42 U.S.C. § 1985. The court is also asked to exercise pendent jurisdiction over the following claims under New York law: slander, defamation of character, invasion of privacy, false arrest, abuse of process and malicious prosecution.

 The federal defendants now move for judgment of dismissal on the pleadings, Rule 12(c), F.R.Civ.P. Their motion is granted.

 I

 Defendants first move for judgment on the constitutional claim on the ground that plaintiff's action is barred by the statute of limitations. Their motion squarely raises the question of what statute of limitations applies to a Bivens type action, an issue upon which authority is surprisingly scarce.

 Plaintiff's claim arises out of acts of federal investigative officers on November 15-16, 1973, and arguably up to dismissal of the criminal complaint November 27, 1973. The complaint in this action was filed, tolling the statute, on January 29, 1975.

 Defendants argue that the court should look to New York law to determine the applicable period, that New York's one-year statute, CPLR § 215, is the most appropriate, and therefore that the action is time-barred.

 Plaintiff strongly opposes, arguing, first, that the court should fashion a purely federal limitations period of two years based on the Federal Tort Claims Act procedure, 28 U.S.C. § 2401(b); secondly, that New York's three-year period applied to actions under 42 U.S.C. § 1983 is most appropriate; or thirdly, that the general limitations provisions, six years under CPLR § 213, should apply, making the action timely.

 Courts have not infrequently been confronted with the problem of defining the most appropriate statute of limitations for federal causes of action, based on federal statutory law. It goes without saying that, for the present cause of action, implied from the Constitution itself, no explicit statute of limitations has been prescribed.

 Where Congress has provided no specific limitations period for a federally created cause of action the court will generally look to state law for the federal rule of decision. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975) (42 U.S.C. § 1981); UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 16 L. Ed. 2d 192, 86 S. Ct. 1107 (1966) (Labor Management Relations Act); Cope v. Anderson, 331 U.S. 461, 91 L. Ed. 1602, 67 S. Ct. 1340 (1947) (National Bank Act); Campbell v. City of Haverhill, 155 U.S. 610, 39 L. Ed. 280, 15 S. Ct. 217 (1895) (Patent Act); Swan v. Board of Higher Education of the City of New York, 319 F.2d 56, 60 (2 Cir. 1963) (42 U.S.C. § 1983). Only when uniformity is particularly necessary or when the nature of the federal right demands a particular statute of limitations will the court create a special federal limitations period. McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 2 L. Ed. 2d 1272, 78 S. Ct. 1201 (1958) (unseaworthiness claim joined with Jones Act action); Holmberg v. Armbrecht, 327 U.S. 392, 90 L. Ed. 743, 66 S. Ct. 582 (1946) (federal rule on fraudulent concealment). See Chevron Oil Co. v. Huson, 404 U.S. 97, 104, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971).

 Plaintiff has urged the adoption of a purely federal statute of limitations on grounds of uniformity. But it must still be asked what sort of uniformity is desired or thereby effected: nationwide uniformity among federal courts for all Bivens actions; uniformity as between treatment of this right and of its analogue, the Civil Rights Act; or uniformity as between treatment of this federal right and of State rights of a related conceptual character. Cf. Moviecolor Limited v. Eastman Kodak Co., 288 F.2d 80, 85 (2 Cir. 1961).

 What kind of uniformity will result based on the suggested statutes? Plaintiff first suggests reference to the Federal Tort Claims Act since, by reason of the recent 1974 amendments, claims arising out of acts of assault, battery, false arrest, malicious prosecution and the like by federal investigative or law enforcement officers may now be maintained against the United States. In plaintiff's view, where the facts underlying plaintiff's Bivens claim against the federal agents might also be in the subject of a tort claim against the United States, the statute of limitations should be the same for both actions.

 Plaintiff's argument that a federally created cause of action, implied from rights guaranteed in the U.S. Constitution against individuals who are federal officers acting under color of authority, should be controlled by a uniquely federal statute of limitations is an appealing one. However, it encounters an insuperable practical obstacle -- no uniformity would in fact result. Not only do the elements of a Bivens claim and an intentional tort differ, but the two-year period of 28 U.S.C. § 2401(b) refers not to the time for commencement of an action, but for filing the requisite administrative claim. No other federal analogue has been presented. In the absence of any analogous federal statute to which the court may turn for guidance and which would produce the uniformity desired, the court is not free to indulge in such judicial legislation as the ex parte creation of a limitations period would require.

 As an alternative, plaintiff argues that, inasmuch as a Bivens action is the counterpart, for federal officers, of the Civil Rights Act, 42 U.S.C. § 1983, the same statute of limitations should apply to both actions to prevent the incongruity of different results under different phases of federal law, citing Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339 (2 Cir. 1972) (on remand from the Supreme Court on the question of immunity). However, such a solution would not ...


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