Liberty National Life Insurance Company v. Moore Brief Amicus Curiae

    No. 00-14507-HH

UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

ELLEN GAYLE MOORE, FANNIE McCONNEL, 
ANITA BOWERS, SPENCER WILLIAMS,

On Behalf of Themselves and All Others Similarly Situated,

Plaintiffs and Appellees,

vs.

LIBERTY NATIONAL LIFE INSURANCE COMPANY, 

Defendant and Appellant.

Interlocutory Appeal from the United States District Court 
for the Northern District of Alabama 

No. CV-99-BU-3262-S

BRIEF OF AMICUS CURIAE
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

Elaine R. Jones 
Theodore M. Shaw 
Norman J. Chachkin 
James Cott 
Robert H. Stroup 
Attorneys fo r  Amicus Curiae 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, 16!h FI. 
New York, NY 10013 
212 965-2200



CERTIFICATE OF INTERESTED PERSONS 

AND CORPORATE DISCLOSURE STATEMENT 

CERTIFICATE OF INTERESTED PERSONS

Pursuant to Eleventh Circuit Rule 26.1-1, the following list comprises all 

trial judges(s), attorneys, persons, associations of persons, firms, partnerships, 

corporations, subsidiaries, conglomerates, affiliates, parent corporations, and other 

identifiable legal entities related to a party, that have an interest in the outcome of 

this litigation:

1. Amzen, Parry & Wentz, P.S.C., of Counsel to the Appellees

2. William C. Barclift, Attorney for the Appellant

3. Baxley, Dillard, Dauphin & McKnight, of Counsel to the Appellant

4. William J. Baxley, Attorney for the Appellant

5. Timothy G. Blood, Attorney for the Appellees

6. Bonnett, Fairboum, Friedman & Balint, of Counsel to the Appellees

7. Anita Bowers, Appellee

8. Bradley Arant Rose & White LLP, of Counsel to the Appellant

9. Brown-Service Funeral Homes Company, Inc., Subsidiary of the 

Appellant

Moore v. Liberty National Life Ins. Co.
Docket No. 00-14507-HH

C-l-of 4



10. H. Dean Buttram, Jr., United States District Judge for the Northern 

District of Alabama

11. Norman Chachkin, Counsel for Amicus Curiae, NAACP Legal 

Defense & Educational Fund, Inc.

12. Christa L. Collins, Attorney for the Appellees

13. James Cott, Counsel for Amicus Curiae, NAACP Legal Defense & 

Educational Fund, Inc.

14. Susan Collyer, Attorney for the Appellees

15. Joseph D. Daley, Attorney for the Appellees

16. Andrew S. Friedman, Attorney for the Appellees

17. Charlene P. Ford, Attorney for the Appellees

18. David Futscher, Attorney for the Appellees

19. Gaines & Davis, of Counsel to the Appellant

20. Floyd Gaines, Attorney for the Appellant

21. W. Christian Hoyer, Attorney for the Appellees

22. Elaine R. Jones, Counsel for Amicus Curiae, NAACP Legal Defense 

& Educational Fund, Inc.

23. Andrew W. Hutton, Attorney for the Appellees

24. James, Hoyer, Newcomer & Smiljanich, P.A., of Counsel to the 

Appellees

Moore v. Liberty National Life Ins. Co.
Docket No. 00-14507-HH

C-2-of 4



25. Rebekah Keith, Attorney for the Appellees

26. Liberty National Auto Club, Inc., Subsidiary of the Appellant

27. Liberty National Group Care, Inc., Subsidiary of the Appellant

28. Liberty National Life Insurance Company, Appellant

29. Fannie McConnell, Appellee

30. Natasha A. Meadows, Attorneys for Appellees

31. Milberg, Weiss, Bershad, Hynes & Lerach, LLP, of Counsel to the 

Appellees

32. Ellen Gayle Moore, Appellee

33. Ron Parry, Attorney for the Appellees

34. Michael R. Pennington. Attorney for the Appellant

35. Theodore M. Shaw, Counsel for Amicus Curiae, NAACP Legal 

Defense & Educational Fund, Inc.

36. Scott B. Smith, Attorney for the Appellant

37. Robert K. Spotswood, Attorney for the Appellant

38. Sanford Svetcov, Attorney for the Appellees

39. John J. Stoia, Jr., Attorney for the Appellees

40. Robert H. Stroup, Counsel for Amicus Curiae, NAACP Legal 

Defense & Educational Fund, Inc.

41. Torch Royalty Company, Subsidiary of the Appellant

Moore v. Liberty National Life Ins. Co.
Docket No. 00-14507-HH

C-3-of 4



42. Torchmark Corporation, Parent of the Appellant

43. United Investors Life Insurance Company, Subsidiary of the 

Appellant

44. Watson, Jimmerson, Givhan & Martin, P.C., of Counsel to the 

Appellees

45. Herman Watson, Jr., Attorney for the Appellees

46. Melvyn I. Weiss, Attorney for the Appellees

47. Whatley Drake, L.L.C., of Counsel to the Appellees

48. Joe R. Whatley, Jr., Attorney for the Appellees

49. Spencer Williams, Appellee

Moore v. Liberty National Life Ins. Co.
Docket No. 00-14507-HH

C-4-of 4



TABLE OF CONTENTS

Table of A uthorities.........................................................................................................[[

Statement of the Issues ..........................................................................................   1

Summary of Argument ................................................................................................... 2

Argument and Citations of A uthority .......................................................... 4

I. BORROWING THE ALABAMA RULE OF REPOSE IS
INAPPROPRIATE UNDER 42 U.S.C. § 1988 ON TWO SEPARATE 
STATUTORY GROUNDS.......................................................................4

A. Congress’s Failure to Include a “Rule of Repose” Among the
Provisions of §§ 1981 & 1982 Does Not Make Those Statutes 
“Deficient” Respecting Remedies ..................................   6

B. Borrowing the Alabama Rule of Repose Is Inconsistent With
Federal Law Governing the Accrual of Federal Causes of 
A c tio n .............................................................................................10

C. Borrowing the Alabama Rule of Repose Undermines the Central
Objectives of the Reconstruction Era Civil Rights Statutes... 15

CO N CLU SIO N ...................     16

Certificate of Compliance 

Certificate of Service

i



TABLE OF AUTHORITIES

FEDERAL CASES

Allison v. ITE Imperial Corp.,

928 F.2d 137 (5th Cir. 1991).......................................................................  7

Board o f  Regents v. Tomanio,

446 U.S. 478(1980).......................................................................................15

Bradway v. American Red Cross,

992 F.2d 298 (11th Cir. 1993).....................................................................  7

Burnett v. Grattan,

468 U.S. 42 (1984)..................  16

Calhoun v. Alabama Alcoholic Beverage Control Board,

705 F.2d 422 (11th Cir. 1983)................................................................... 13

Cope v. Anderson,

331 U.S. 461 (1947)................................................................................ 3, 12

Felder v. Casey,

487 U.S. 131 (1988).............................................................................. passim

First United Methodist Church o f  Hyattsville v. United States Gypsum Co.,

882 F.2d 862 (4th Cir. 1989).......................................................................  7

ii



Gibson v. United States,

781 F.2d 1334 (9th Cir. 1986)................................................................... 16

Goodman v. Lukens Steel Co.,

482 U.S. 656(1987)................................................................ .............. 6, 15

Hardin v. Straub,

490 U.S. 536(1989)....................................................................................  15

Holmberg v. Albrecht,

327 U.S. 392 (1946).........................................................................  3, 13, 14

Johnson v. Railway Express Agency, Inc.,

421 U.S. 454 (1975)....................................................................................  15

Kaplan v. Share Brothers, Inc.,

153 F.3d 413 (7th Cir. 1998).......................................................................  7

Moore v. El Paso County,

660 F.2d 586 (5th Cir. November, 1981)..... ........................................... 16

Mullinax v. McElhenney,

817 F.2d 711 (11th Cir. 1987)............................................................  13,15

Nesladek v. Ford Motor Co.,

46 F.3d 734 (8th Cir. 1995).........................................................................  7

iii



Occidental Life Insurance Co. o f  California v. EEOC,

432 U.S. 355 (1977)....................................................................................  12

Peterson v. BMI Refractories,

132 F.3d 1405 (11th Cir. 1998)................................................................... 6

Rawlins v. Ray,

312 U.S. 96 (1941).................................................................................. 3, 12

Reed v. United Transport Union,

488 U.S. 319(1989)....................................................................................  12

Robertson v. Wegmann,

436 U.S. 584(1978)....................................................................................  16

Rodriguez Narvaez v. Nazario,

895 F.2d 38 (1st Cir. 1990).........................................................................  16

Rozar v. Mullis,

85 F.3d 556 (11th Cir. 1996)..........................................................  3, 12, 13

Singleton v. New York,

632F.2d 185 (2d Cir. 1980).....................................................................  16

Wilson v. Garcia,

471 U.S. 261 (1985).........................................................................  6, 12, 15

IV



STATE CASES

Baugher v. Beaver Construction Co.,

___A la.___ , 2000 Ala. LEXIS 510, [4] n. 1 (November 22, 2000). 8,14

Oehmig v. Johnson,

638 So. 2d 846 (Ala. 1994)....................................................................  7, 14

Willis v. Shadow Lawn Memorial Park,

709 So. 2d 1241 (Ala. Civ. App. 1998)...............................................  7, 14

FEDERAL STATUTES

42 U.S.C. §§ 1981 & 1982 ..................................................................................passim

42U.S.C. § 1983 ...........................................................................................................  9

42 U.S.C. § 1985 .........................................................................................................  13

42 U.S.C. § 1988 .................................................................................................. passim

Fed . R. A pp. P. 2 9 (a ) .....................................................................................................  1

STATE STATUTES

Ala. Code § 6-2-38(1) 6



MISCELLANEOUS

Restatement (Second) Of Torts § 8 9 9 ................................................................... 10

The Constitutionality o f  Statutes o f  Repose: Federalism Reigns, "38 Vand. L. Rev.

627(1985) 10



NO. 00-14507-HH

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

LIBERTY NATIONAL LIFE INSURANCE COMPANY,

PETITIONER,

V.

ELLEN GAYLE MOORE, FANNIE MCCONNELL, SPENCER WILLIAMS & 
ANITA BOWERS, On Behalf of Themselves and All Others Similarly Situated,

RESPONDENTS.

BRIEF OF AMICUS CURIAE NAACP LEGAL DEFENSE & EDUCATIONAL
FUND, INC.1

Statement of the Issues

1. Whether rules of repose, such as Alabama’s rule of repose, are so 

“universally familiar” and “indispensable” to any scheme of justice that 42 U.S.C. §§ 

1981 & 1982 must be viewed as “deficient as to remedy” for Congress’s failure to 

include such a provision in those statutes, thereby meeting one o f the requisites for 

borrowing state law under 42 U.S.C. § 1998?

2. Whether an absolute rule of repose is inconsistent with federal law

All parties have consented to the filing of this brief. FED. R. APP. P. 29(a).1



governing accrual of civil rights actions so that borrowing of Alabama’s rule of repose 

would be inappropriate under 42 U.S.C. § 1988?

3. Whether an absolute rule of repose is inconsistent with federal law 

governing accrual of actions involving fraud so that borrowing of Alabama’s rule of 

repose would be inappropriate under 42 U.S.C. § 1988?

Summary of Argument

This appeal raises questions regarding the proper statutory construction of 

42 U.S.C. § 1988. That statute defines the occasions when it is appropriate for a 

federal court to borrow state law in actions arising under the federal civil rights laws. 

The District Court properly interpreted § 1988. The Congressional authorization to 

borrow state law that is found in § 1988 is not an authorization for the federal courts 

to borrow each and every rule of law that has been enacted by a State legislature or 

adopted by the State courts. Rather, Congress has provided in § 1988 that borrowing 

will occur only when a federal civil rights law, such as 42 U.S.C. §§ 1981 or 1982, is 

“deficient” as to remedies. In Felder v. Casey, 487 U.S. 131, 139 (1988), the United 

States Supreme Court enunciated the test of when a civil rights law is deficient as to 

remedy. Only if the civil rights law does not include a rule that is “universally 

familiar” and “indispensable” to a scheme of justice does it meet the “deficiency” test 

under Felder. Absolute rules of repose, such as Alabama’s, are neither universally

2



familiar nor indispensable to a scheme of justice. It cannot be said, therefore, that the 

civil rights laws are deficient for their failure to include such a provision in their 

express terms. On this basis alone, the district court correctly declined to borrow 

Alabama’s rule of repose.

Furthermore, § 1988 does not provide for borrowing in all instances 

where a federal civil rights act is deficient under Felder. Congress has provided that 

borrowing is inappropriate if the state law is “inconsistent” with federal law. On this 

statutory basis, too, the District Court properly rejected borrowing of the Alabama rule 

of repose.

Federal law, not state law, determines when a federal cause of action 

accrues. Rawlins v. Ray, 312 U.S. 96 (1941). This is true for all federal statutes, even 

where borrowing of a state statute of limitations occurs. Cope v. Anderson, 331 U.S. 

461 (1947). This Court has repeatedly held that federal accrual law determines the 

time of accrual of federal civil rights laws. Rozar v. Mullis, 85 F.3d 556 (11th Cir.

1996). Additionally, federal law determines the time of accrual for federal actions 

involving fraud. Holmberg v. Albrecht, 327 U.S. 392 (1946). Federal law provides 

that in each of these instances, a federal cause of action does not accrue “until the facts 

which would support a cause of action are apparent or should be apparent to a person 

with a reasonably prudent regard for his rights.” Rozar, 85 F.3d at 561-62.

3



Borrowing of the Alabama rule of repose is inconsistent with these 

federal accrual rules. If defendant’s interpretation of the Alabama rule o f repose is 

correct, the Alabama rule rejects the federal principle that a cause of action does not 

accrue until the facts which would support a cause of action are known or should be 

known to the plaintiff. Instead, a person is barred from bringing an action even if he 

or she acted with due diligence and could not reasonably have discovered the facts 

during the time period preceding suit. This is directly contrary to federal accrual law. 

Under defendant’s interpretation of the Alabama rule, even if defendant’s own 

fraudulent conduct frustrated or prevented that discovery, the plaintiff would be 

foreclosed from bringing an action. Again, this is contrary to federal law. On this 

ground, too, the District Court properly applied 42 U.S.C. § 1988. Because a rule of 

repose that acts as an absolute bar without regard to federal accrual principles is 

inconsistent with federal law, it is not appropriate for borrowing under § 1988.

Argument and Citations of Authority

I. BORROWING THE ALABAMA RULE OF REPOSE IS INAPPROPRIATE 

UNDER 42 U.S.C. § 1988 ON TWO SEPARATE STATUTORY GROUNDS

This interlocutory appeal from the Order of the District Court for the 

Northern District of Alabama entered July 3, 2000 raises questions regarding the

4



proper construction of 42U.S.C. § 1988.2 The issue presented is whether the District 

Court properly rejected application of Alabama’s twenty-year “rule of repose” to these 

claims arising under 42 U.S.C. §§ 1981 & 1982. The defendant here is in error when 

it argues that 42 U.S.C. § 1988 “requires” incorporation of Alabama’s common law 

of repose and that Alabama’s common law rule of repose “assumes preeminence in 

§ 1988's borrowing scheme.” (Brief of Petitioner Liberty National Life Insurance 

Company, 16).

Defendant’s arguments utterly fail to consider the express statutory 

language of § 1988 as well as applicable United States Supreme Court and Eleventh 

Circuit precedent. On two separate and distinct statutory grounds, it would be

242 U.S.C. § 1988 provides, in material part, as follows:

The jurisdiction . . . conferred on the district courts 
[by, inter alia, 42 U.S.C. §§ 1981 & 1982]. . . for the 
protection of all persons in their civil rights. . . .shall be 
exercised and enforced in conformity with the laws of the 
United States, so far as such laws are suitable to carry the 
same into effect; but in all cases where they are not adapted 
to the object, or are deficient in the provisions necessary to 
furnish suitable remedies.. . ,  the common law, as modified 
and changed by the constitution and statutes of the State 
wherein the court having jurisdiction of such civil or 
criminal cause is held, so far as the same is not inconsistent 
with the Constitution and laws of the United States, shall be 
extended to and govern the said courts in the trial and 
disposition of the cause. . . .

5



improper to borrow Alabama’s rule of repose. On either or both of these grounds, the 

decision of the District Court should be affirmed.

A. Congress’s Failure to Include a “Rule of Repose” Among the 

Provisions of §§ 1981 & 1982 Does Not Make Those Statutes “Deficient” 

Respecting Remedies

42U.S.C. § 198 8 does not provide for the universal borrowing of all state 

law practices and procedures. It provides for borrowing state law only in limited 

circumstances. § 1988 provides for borrowing only when federal substantive law (in 

this case, 42 U.S.C. §§ 1981 & 1982) is “deficient as to suitable remedies.” Felder v. 

Casey, 487 U.S. 131, 139 (1988) (“[W]here. . . the federal civil rights laws fail to 

provide certain rules of decision thought essential to the orderly adjudication of rights, 

courts are occasionally called upon to borrow state law.”). In this instance, because 

federal law is not deficient as to suitable remedies, there is no occasion to borrow 

Alabama’s law of repose.3

borrow ing of the most closely analogous Alabama statute of limitations was, 
of course, appropriate and is not at issue in this case. Wilson v. Garcia, 471 U.S. 261, 
278-79 (1985). The most closely analogous Alabama statute of limitations is Ala. 
Code § 6-2-38(1). Peterson v. B M l Refractories, 132 F.3d 1405, 1413-14 & n.16 (11th 
Cir. 1998). Statutes of limitations are different from statutes of repose, and the District 
Court’s analysis properly reflected this difference. The District Court correctly noted 
the differing uses of the term “statute of repose.” While on occasion the term is used 
as a synonym for statute of limitations (e.g.,Goodman v. Lukens Steel Co., 482 U.S.

6



656, 663 (1987), it is more precisely used to describe a rule, such as at issue here, that 
creates an absolute bar to litigation of a claim, without reference to usual concepts of 
accrual. The District Court described Alabama’s rule of repose as “of a different kind 
than its various statutes of limitations: While a statute of limitations is a procedural 
device that sets forth the time period within which an action is deemed to have accrued 
and that is capable of being waived or tolled, a rule of repose is substantive doctrine 
of the State, eliminating a cause o f action, irrespective of its date of accrual.” R2-53- 
11. But c f  Oehmig v. Johnson, 638 So.2d 846, 850-51 (Ala. 1994) (“The time for the 
rule of repose cannot run until there is at least constructive notice of a potential 
claim.”); Willis v. Shadow Lawn Memorial Park, 709 So. 2d 1241, 1243 (Ala. Civ. 
App. 1998) (“However, this 20-year period does not start to run until a plaintiffs 
cause of action has accrued.”). This Court has recognized the vastly different 
character of a statute of repose from a statute of limitations. Bradway v. American 
Red Cross, 992 F.2d 298,301 (11th Cir. 1993) (“There is a distinct difference between 
statutes of limitations and statutes of repose. ‘A statute o f limitations normally 
governs the time within which legal proceedings must be commenced after the cause 
of action accrues. . . A statute o f  repose, however, limits the time within which an 
action may be brought and is not related to the accrual o f  any cause o f  action.”) 
(Emphasis in original).

Courts have almost universally characterized statutes of repose that operate in 
the same manner as Alabama’s rule of repose as substantive law. First United 
Methodist Church o f  Hyattsville v. United States Gypsum Co., 882 F.2d 862, 865-66 
(4th Cir. 1989) (“A statute of limitations is a procedural device that operates as a 
defense to limit the remedy available for an existing cause of action, (citation omitted) 
A statute of repose creates a substantive right in those protected to be free from 
liability after a legislatively-determined period of timq.”)-,Allison v. ITE Imperial 
Corp., 928 F.2d 137, 144 (5th Cir. 1991) (“The parties do not dispute that the 
Tennessee statute of repose is substantive. It is not a simple statute of limitations and 
has been construed as being substantive.’’); 7u3/?/a« v. ShureBros., Inc., 153 F.3d 413, 
422 (7th Cir. 1998) (“A statute of repose is essentially different from a statute of 
limitations, in that a limitations statute is procedural, giving a time limit for bringing 
a cause of action, with the time beginning when the action has ripened or accrued; 
while a repose statute is a substantive statute, extinguishing any right o f bringing the 
cause of action, regardless of whether t has accrued.”(citation omitted)); Nesladekv. 
Ford Motor Co., 46 F.3d 734, 736 n.2 (8th Cir. 1995) (“Most courts that have been

7



In Felder, 487 U.S. at 140, the Supreme Court declined to borrow a 

Wisconsin law requiring the filing of a pre-lawsuit “notice of claim.” The Wisconsin 

law applied to all civil actions brought against any state or local governmental entity 

or officer in Wisconsin. Failure to comply resulted in dismissal of the lawsuit. Nor 

was Wisconsin alone in adoption of such a requirement. Many other states had 

adopted similar positions. Id. at 137. The Supreme Court concluded that federal law, 

in that case 42 U.S.C. § 1983, was not deficient for not having a “notice of claim” 

requirement. Because it was not deficient, there was no basis, under § 1988, to borrow 

the state rule.

Two factors determine whether or not federal law is deficient as to 

remedy. These are 1) whether the provision is “universally familiar” to federal and 

state litigation and 2) whether the provision is “indispensable” to any scheme of 

justice. Id. at 140. For example, when a federal statute lacks a statute of limitations, 

the Supreme Court has viewed the statute to be deficient because statute of limitations

faced with the question have found statutes of repose to be substantive law for conflict 
of law purposes.”).

The Alabama Supreme Court, inBaugher v. Beaver Constr. Co.,___A la.___ ,
2000 Ala. LEXIS 510, [*4] n.l (November 22, 2000) recognized the difference 
between a statute of limitations and a statute of repose. (“Unlike an ordinary statute 
of limitations which begins running upon accrual of the claim, the period contained 
in a statute of repose begins when a specific event occurs, regardless of whether a 
cause of action has accrued or whether any injury has resulted.”).

8



are “universally familiar” and “indispensable” to litigation. InFelder, 487 U.S. at 

140, however, the Supreme Court concluded that “notice of claims” provisions “are 

neither universally familiar nor in any sense indispensable prerequisites to litigation,” 

and therefore, § 1983 was not deficient for its failure to include such a provision. 

There was, the Supreme Court stated, “no reason to suppose that Congress intended 

federal courts to apply such rules which ‘significantly inhibit the ability to bring 

federal actions.’”(dtation omitted). Id, at 140.

Applying that same standard here, the District Court properly rejected the 

borrowing of Alabama’s “rule of repose.” As the District Court observed, rules of 

repose “appear sparingly” in federal statutes, and are certainly not “a regular feature 

of the landscape in the prosecution of federal rights.” (R2-53-12). Nor are statutes 

of repose common among state statutory schemes. Many such state provisions are of 

recent vintage, enacted in response to a perceived crisis in the products liability area. 

“The Constitutionality of Statutes of Repose: Federalism Reigns,” 38 Vand.L.Rev. 

627 (1985) (“During the mid-1970's an alleged ‘crisis’ occurred in the products

liability field-----Legislatures in many states reacted by enacting various provisions

designed to limit this perceived unfairness to manufacturers. A major consequence 

of this legislative action was the adoption in many states of statutes o f repose. . . .”) 

See also, RESTATEMENT (SECOND) Of TORTS § 899 cmt. g. (1977) (“In recent years

9



special "statutes of repose" have been adopted in some states covering particular kinds 

of activity, such as professional negligence for doctors, lawyers or architects, or 

products liability, or liability of building contractors.”).

Given this lack of universality, the failure of Congress to include a rule 

of repose in 42U.S.C. §§ 1981 and 1982 does not render those laws “deficient” under 

§ 1988. Nor is there reason to suppose that Congress intended the federal courts to 

apply a rule o f repose, again, where it, like the “notice of claims” rule in Felder, 

significantly inhibits the ability to bring federal actions. Federal claims under § § 1981 

and 1982 can be litigated without resort to a rule of repose and therefore are not 

“deficient as to remedy.” On this ground alone, the decision of the District Court 

should be affirmed.

B. Borrowing the Alabama Rule of Repose Is Inconsistent With 

Federal Law Governing the Accrual of Federal Causes of Action

The Alabama rule of repose is inconsistent with two lines of federal 

authority regarding the accrual of federal causes of action. It is inconsistent with the 

law governing the accrual of civil rights actions and the law governing accrual of 

actions involving fraud. Borrowing the Alabama rule of repose is contrary to these 

lines of federal precedent and is, therefore inappropriate under 42 U.S.C. § 1988's 

provision that borrowing will occur only when state law is not “inconsistent with the

10



. . . laws of the United States.” Reed v. United Transp. Union, 488 U.S. 319, 324 

(1989) (“State legislatures do not devise their limitations periods with national 

interests in mind," however, "and it is the duty of the federal courts to assure that the 

importation o f state law will not frustrate or interfere with the implementation of 

national policies." (quoting) Occidental Life Ins. Co. o f  California v. EEOC, 432 U.S. 

355, 367 (1977); Wilson v. Garcia, 471 U.S. 261, 271 (1985) (“"[The] cases also 

establish that the silence of Congress is not to be read as automatically putting an 

imprimatur on state law. Rather, state law is applied only because it supplements and 

fulfills federal policy, and the ultimate question is what federal policy requires.").

Contrary to defendant’s assertions, federal rather than state law is 

paramount as to the time when a federal cause of action accrues, even on those 

occasions where a state statute of limitations is borrowed. Rules of accrual are matters 

of federal, not state law. Rawlings v. Ray, 312 U.S. 96, 98 (1941) (“The question as 

to the time when there was a complete and present cause of action so that the receiver 

could enforce by suit the liability imposed.. . is a federal question.”). This is so even 

when the federal court borrows a state limitations period. Cope v. Anderson, 331 U.S. 

461, 464 (1947) (“[T]he question of when the applicable state statute o f limitations 

begins to run depends upon . . federal law.”); Accord Rozar v. Mullis, 85 F.3d 556 

(1101 Cir. 1996) (“Federal law determines when a federal civil rights claim accrues.”);

11



Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987) (“[W]hen a Section 1983 

action accrues is a question of federal law.”); see also, additional cases cited in 

Mullinax, 817 F.2d at 716.

Federal law provides that a cause of action arising under any of the 

Reconstruction-Era Civil Rights Acts (42 U.S.C. §§ 1981,1982,1983 and 1985) does 

not accrue “until the facts which would support a cause of action are apparent or 

should be apparent to a person with a reasonably prudent regard for his rights CRozar, 

85 F.3d at 561-62 (quoting)Mullinax, 817 F.2d at 716. Accord Calhoun v. Alabama 

Alcoholic Beverage Control Bd., 705 F.2d 422, 425 (11th Cir. 1983).

Federal law provides a similar accrual rule in cases alleging fraud. The 

limitations period for bringing a federal cause of action when fraud is alleged does not 

begin to run “until the fraud is discovered.” Holmberg v. Armbrecht, 327 U.S. 392, 

397 (1946) (Every federal statute of limitations had been read to include “the old 

chancery rule that where a plaintiff has been injured by fraud and ‘remains in 

ignorance of it without any fault or want of diligence or care on his part, the bar of the 

statute does not begin to run until the fraud is discovered, though there be no special 

circumstance or efforts on the part of the party committing the fraud to conceal it from 

the knowledge of the other party.’’’(citations omitted) The Supreme Court in 

Holmberg also held that the same rule applied when a state limitations period was

12



borrowed. Id. at 397.

The Alabama rule of repose is plainly inconsistent with both o f these lines 

of federal authority. A recent decision of the Alabama Supreme Court suggests that 

rules of repose in Alabama have been construed as contrary to federal accrual

principles. Baugher v. Beaver Constr. Co.,___A la.___ , 2000 Ala. LEXIS 510, [*4]

n.l (November 22, 2000) (“Unlike an ordinary statute of limitations which begins 

running upon accrual of the claim, the period contained in a statute of repose begins 

when a specific event occurs, regardless of whether a cause of action has accrued or 

whether any injury has resulted.”)4 Under this interpretation of the Alabama rule, 

when a person actually gains knowledge of facts sufficient to support a cause of action 

is without consequence.

4 For purposes of this brief, amicus NAACP Legal Defense Fund has assumed 
(without conceding) that defendant is correct regarding the effect of the Alabama rule 
of repose. That is, that the rule of repose acts as an absolute bar. Plaintiffs Moore, et 
al. have noted that there is Alabama authority holding that the Alabama rule o f repose 
also incorporates an accrual or “discovery” rule that is similar to federal law. See, 
e.g., Oehmigv. Johnson, 638 So. 2d 846, 850-51 (Ala. 1994) andWillis v. Shadow 
Lawn Memorial Park, 709 So. 2d 1241, 1243 (Ala. Civ. App. 1998). In any case, 
dismissal of this action is inappropriate under either interpretation of the Alabama rule. 
If the rule of repose acts as an absolute bar, it is contrary to federal law and is 
inappropriate for borrowing under § 1988. If it incorporates a discovery rule similar 
to federal law, then dismissal is inappropriate in light of the application of that 
discovery rule to the facts alleged in the complaint.

13



Application of the Alabama rule of repose to this case would mean that 

victims of racial discrimination made unlawful under 42 U.S.C. §§ 1981 & 1982 

would be barred from all recovery because defendant was successful in hiding his 

wrongdoing throughout the applicable time period. Plaintiffs would be barred even 

though the defendant’s success was based upon fraudulent conduct. Even though this 

action is timely under federal accrual principles it would become untimely because of 

the Alabama rule of repose. This result is directly contrary to the principle that federal 

law determines when a federal action is timely filed through application of federal 

accrual principles. Defendant’s argument that the Alabama rule o f repose “assumes 

preeminence” is simply contrary to this federal authority. Under 42 U.S.C. § 1988, 

the rule of repose “assumes preeminence” only if it is not inconsistent with federal 

law. Because it is in direct conflict, 42 U.S.C. § 1988 provides no basis for borrowing 

Alabama’s rule of repose.5

5 The Supreme Court authority relied upon in defendant’s brief —Johnson v. 
Railway Express Agency, Inc. ,421 U.S. 454 (1975), Board o f  Regents v. Tomanio, 
446 U.S. 478 (1980), Wilson v. Garcia, 471 U.S. 261 (1985) and Goodman v. Lukens 
Steel Co., 482 U.S. 656 (1987) -- all considered statutes of limitations. None 
authorized borrowing of a statute of repose that failed to incorporate federal accrual 
principles. Moreover, defendant’s reliance upon the Court’s treatment oftolling issues 
in Tomanio and Hardin v. Straub, 490 U.S. 536, 539 (1989) is misplaced. Tolling 
principles, unlike accrual rules, are not governed by federal law. Mullinax, 817 F.2d 
at 716. (“However, the Supreme Court has clearly stated that in Section 1983 actions 
“only the length of the limitations period, and the closely related questions of tolling

14



C. Borrowing the Alabama Rule of Repose Undermines the Central 

Objectives of the Reconstruction Era Civil Rights Statutes.

A decision to borrow state law must also consider the underlying 

purposes of the federal substantive law involved. Robertson v. Wegmann, 436 U.S. 

584,590, (1978) (“Of particular importance is whether application of state law "would 

be inconsistent with the federal policy underlying the cause of action under 

consideration." (quoting) Johnson v. Railway Express Agency, Inc., 421 U.S. 454,465 

(1975))

Here, the underlying policy of 42 U.S.C. §§ 1981 & 1982 “is to ensure 

that individuals whose federal constitutional or statutory rights are abridged may 

recover damages or secure injunctive relief.” (quoting) Burnett v. Grattan, 468 U.S. 

42, 55 (1984). Felder, 487 U.S. at 139. Yet defendant asks this Court to apply the 

Alabama rule of repose, despite the fact that it is inconsistent both with the federal 

policy underlying the Civil Rights Act as well as the federal policy reflected in the 

federal accrual cases. 42 U.S.C. § 1988 provides no basis for such borrowing.

and application, are to be governed by state law." (citation omitted) Thus, when a 
Section 1983 action accrues is a question of federal law.” (citation omitted)). Accord 
Rodriguez Narvaez v. Nazario, 895 F.2d 38, 42 (text and note 5) (1st Cir. 1990); 
Moore v. El Paso County, 660 F.2d 586, 590 n.4 (5th Cir. November, 1981 );Gibson 
v. United States, 781 F.2d 1334, 1340, 1342 (9th Cir. 1986); Singleton v. New York, 
632 F.2d 185, 191 (2d Cir. 1980).

15



CONCLUSION

The District Court did not err in declining to borrow Alabama’s rule of 

repose. The federal substantive provisions here, 42 U.S.C. §§ 1981 & 1982, are not 

deficient as to remedy, and, therefore, there is no basis to borrow Alabama’s rule of 

repose. Such rules are neither universally a part of nor indispensable to a scheme of 

justice. Further, even if these federal civil rights laws were “deficient as to remedy,” 

because the Alabama rule of repose is inconsistent with federal law governing the 

accrual of federal actions, it is inappropriate to borrow the rule. Finally, it is 

inappropriate to borrow the Alabama rule because doing so undermines the central 

objective of the Civil Rights Acts to provide damages or injunctive relief to persons 

whose rights have been abridged.

Respectfully submitted,

Elaine R. Jones 7 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
James Cott 
Robert H. Stroup
NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street, 16th FI.
New York, NY 10013 
212 965-2200
Attorneys for Amicus Curiae

16



CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume limitation set 

forth in FRAP 32(a)(7)(B). This brief contains 4,148 words.



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing BRIEF OF AMICUS CURIAE 

have been served by depositing the same in the United States mail, first class 

postage prepaid, in this 12th day of February, 2001, addressed to the following:

PLAINTIFF CO-COUNSEL:

Joe Whatley, Esq.
Charlene P. Cullen, Esq.
Whatley Drake, L.L.C.
1100 Financial Center 
505 20th Street North 
Birmingham, AL 35203 
Office: (205) 328-9576 
Fax:(205)328-9669

Herman Watson, Esq.
Rebekah Keith, Esq.
Watson Jimmerson, P.C.
200 Clinton Avenue West, Suite 800 
Post Office Box 46 
Huntsville, AL 35804 
Office: (256) 536-7423 
Fax:(256)536-2689

Melvyn I. Weiss, Esq.
Milberg, Weiss, Bershad, Hynes 

& Lerach, L.L.P.
One Pennsylvania Plaza 
New York, NY 10119-0165 
Office: (212) 594-5300 
Fax:(212)868-1229

John J. Stoia, Jr., Esq.
Timothy G. Blood, Esq.
Milberg, Weiss, Bershad, Hynes 

& Lerach, L.L.P 
600 West Broadway 
Suite 1800
San Diego, California 92101-5050 
Office: (619) 231-1058 
Fax:(619)231-7423

Sandy Svetcov, Esq.
Milberg, Weiss, Barshad,
Haynes & Lerach LLP 
100 Pine Street Ste 2600 
San Francisco, CA 94111 
415-288-4545 
415-288-4534 (fax)

W. Christian Hoyer, Esq.
Christa L. Collins, Esq.
James Hoyer Newcomer Forizs 

& Smiljanich, P.A.
One Urban Center, Suite 147 
4830 West Kennedy Boulevard 
Tampa, FL 33609 
Office: (813) 286-4100 
Fax: (813) 286-4174



Andrew S. Friedman, Esq. 
Bonnett, Fairboum, Friedman 

& Balint, P.C.
4041 North Central Avenue 
Suite 1100
Phoenix, AZ 85012-3311
Office: (602) 274-1100 
Fax: (602)274-1199

Ron Parry, Esq.
Amzen, Parry & Wentz, P.S.C. 
128 East Second Street 
Post Office Box 472 
Covington, KY 41012-0472 
Office: (606) 431-6100 
Fax:(606)431-2211

DEFENSE COUNSEL:

William J. Baxley, Esq.
William C. Barclift, Esq.
Baxley, Dillard, Dauphin & McKnight 
2008 3rd Avenue South 
Birmingham, AL 35233

Michael R. Pennington, Esq.
James Warren May, Esq.
Bradley, Arant, Rose & White, LLP 
2001 Park Place, Suite 1400 
Birmingham, AL 35203-2736

Floyd Gaines, Esq.
Gaines & Davis 
513 21s1 Street North 
Birmingham, AL 35203

ROBERT H. STROUP