Carol Van Strum; Paul E. Merrell, Plaintiffs-appellants, v. John C. Lawn, et al., Defendants-appellees, 940 F.2d 406 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 940 F.2d 406 (9th Cir. 1991) Argued and Submitted July 12, 1990. Decided March 5, 1991. Amended July 23, 1991

Ralph A. Bradley, Bradley & Gordon, Eugene, Or., for plaintiffs-appellants.

Katherine S. Gruenbeck, Jeffrey P. Kehne, U.S. Dept. of Justice, Washington, D.C., Robert Franz, Eugene, Or., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before FLETCHER, FERGUSON and FERNANDEZ, Circuit Judges.

FLETCHER, Circuit Judge:

Appellants Carol Van Strum and Paul Merrell appeal the district court's dismissal of their suit against a number of federal and county officials. Appellants assert that federal officials, acting in concert with officials of Lincoln County, Oregon, subjected appellants' home to frequent and harassing helicopter and fixed-wing aircraft overflights in retaliation for appellants' public opposition to the use of herbicides on national forest land. In the court below, appellants pursued Bivens claims (Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971)), section 1983 claims (42 U.S.C. § 1983), and NEPA claims (the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.). The district court granted appellees' motions to dismiss and for summary judgment on all counts. The majority of the issues presented in this case are resolved in an unpublished memorandum disposition pursuant to Ninth Circuit Rule 36-3. We decide the statute of limitations question raised by appellants' Bivens claims in this opinion.

Appellants, husband and wife, reside on land abutting the Siuslaw National Forest in Oregon. The parcel is approximately 28 acres in size. The national forest land is managed by the United States Forest Service (USFS). In the early 1980's, the Drug Enforcement Administration (DEA) implemented a program to eradicate cannabis on federal lands. As part of this program, the DEA, in cooperation with the USFS and Lincoln County officials implemented a surveillance operation involving both fixed-wing aircraft and helicopters to detect the growth of cannabis. Appellants contend that under the guise of the surveillance program, appellees, various employees of the DEA, the USFS, and the county, engaged in a conspiracy to punish and deter plaintiffs from their anti-herbicide activity. They assert that on a number of occasions beginning in 1982 appellees have flown fixed-wing aircraft and helicopters at low altitudes near their house resulting in damage to their crops and livestock and causing them considerable mental and emotional distress.

Appellants filed suit on August 22, 1985. On ruling on appellees' motion for summary judgment, the district court held that the applicable statute of limitations for both appellees' Bivens and Sec. 1983 claims was O.R.S. 12.110(1), Oregon's two-year personal injury statute of limitations. It therefore held that incidents occurring before August 22, 1983 were not actionable. Appellants contest that ruling, arguing that the court should have applied Oregon's "catch-all" statute of limitations provision, O.R.S. 12.140, which provides for a ten-year statute of limitations.

The district court based its decision of the applicable statute of limitations on Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985), which determined the applicable statute of limitations for claims pursuant to 42 U.S.C. § 1983. The district court did not consider the question of whether Bivens actions should be treated differently from Sec. 1983 actions and, therefore, whether Wilson properly applied. Moreover, the court dismissed the possibility that application of Wilson on the facts of this case raised issues of retroactivity, requiring an analysis of the factors identified in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971). We now consider both of these questions.

In Wilson, the Supreme Court addressed the question of the appropriate statute of limitations to be applied to Sec. 1983 actions. Congress has not established a specific time limitation for Sec. 1983, but instead directs adoption of state limitations if they are not inconsistent with federal law. 42 U.S.C. § 1988. Wilson determined that, in choosing the relevant state limitation, all Sec. 1983 claims should be characterized in the same way, regardless of the varying factual circumstances and legal theories presented in each case. Furthermore, Wilson found that the state statute of limitations for personal injury was the choice that best effectuated Sec. 1983's objectives.

The Wilson decision did not address whether the statute of limitations for personal injury should also apply to Bivens actions. Prior to the Supreme Court's decision in Wilson, this circuit did not always apply the same statute of limitations in both types of actions. In Marshall v. Kleppe, 637 F.2d 1217 (9th Cir. 1980), we specifically rejected the application of California's statute of limitations applicable to Sec. 1983 actions to claims against federal officials brought directly under the Constitution. We deemed the fundamental inquiry in determining the statute of limitations for both Sec. 1983 and Bivens claims to be the same: what statute of limitations applies to the most analogous state statute? Id. at 1222. However, we found that the result of this inquiry differed because Sec. 1983 actions brought in California were most analogous to "liabilit [ies] created by statute," id., at 1223 (quoting Cal.Code Civ.Proc. Sec. 338(1)), which were governed by a specific limitations provision in California. We rejected applying that limitations period to constitutional tort actions, however, because " [p]ut simply, the Constitution is not a statute." Id. Instead, we determined that the applicable statute-of-limitations period for Bivens actions brought in California was governed by that state's "catch-all statute." Id. at 1224. Thus, were Marshall to govern the action at bar, the applicable statute of limitations of its Bivens claims would likely be Oregon's catch-all provision, O.R.S. 12.140, which provides that " [a]n action for any cause not otherwise provided for shall be commenced within 10 years."

We have not yet considered the issue of whether Wilson affects our holding in Marshall.1  At first blush, Wilson appears not to apply because it expressly bases its determination of Sec. 1983's statute of limitations on principles of statutory construction inapplicable to Bivens actions. Wilson, 471 U.S. at 268, 105 S. Ct. at 1942-43. However, on a closer reading of the opinion, it is clear that the Court based its holding, not on either the text or legislative history of Sec. 1983, but on the imputation of purposes to the 1871 Congress that enacted Secs. 1983 and 1988 based on practical concerns about judicial administration of that statute.2  See Bieneman v. City of Chicago, 864 F.2d 463, 469 (7th Cir. 1988) (" [Wilson ] do [es] not depend on Sec. 1988. Nothing in the text or history of that statute speaks to the question. The Court had to devise its own rule, and it made a practical choice for compelling reasons."), cert. denied, 490 U.S. 1080, 109 S. Ct. 2099, 2100, 104 L. Ed. 2d 661 (1989).

In actuality, the Supreme Court expressed three concerns in the Wilson analysis: First, the Court considered the need for a uniform, generic, easily applicable limitations period within each state. In the Court's words, "The experience of the courts that have predicated their choice of the correct statute of limitations on an analysis of the particular facts of each claim demonstrates that their approach inevitably breeds uncertainty and time-consuming litigation that is foreign to the central purposes of Sec. 1983." Id. 471 U.S. at 272, 105 S. Ct. at 1944-45. Second, it weighed the need for a limitations period that would safeguard the rights of civil rights litigants, determining that " [i]t is most unlikely that the period of limitations applicable to [personal injury] claims ever was, or ever would be, fixed in a way that would discriminate against federal claims." Id. at 279, 105 S. Ct. at 1948-49. Third, the Court determined that the personal injury statute of limitations best emphasized the personal nature of constitutional wrongs. Id. at 277-78, 105 S. Ct. at 1947-48. The Wilson Court explicitly rejected the notion that limitations periods for rights granted by statute should apply because, even though Sec. 1983 is a statute, it is remedial and not substantive. Id. at 278, 105 S. Ct. at 1948. It explicitly held that the substantive force of Sec. 1983 comes from the Constitution and in particular from its provisions granting rights to persons independent of what a legislature might choose to grant them. Id. at 278-279, 105 S. Ct. at 1948-49.

All three of these concerns apply with equal force to Bivens actions. Actions under Sec. 1983 and those under Bivens are identical save for the replacement of a state actor under Sec. 1983 by a federal actor under Bivens. Like Sec. 1983 actions, the purposes of Bivens actions are best served through a uniform, easily applicable limitations period that is unlikely to discriminate against interests protected by the Constitution. Moreover, the rationale for applying the statute of limitations for personal injury applies with even greater force to Bivens actions, which come solely from the provisions of the Constitution protecting personal rights.

We are further prompted to apply Wilson to claims invoking the Constitution directly by a practical concern. In some suits, as in the one at hand, a plaintiff may choose to sue certain defendants interchangeably under Sec. 1983 or directly under the Constitution. As the Seventh Circuit stated in determining to apply Wilson to direct suits under the Constitution:

There is no reason to have a different period of limitations, and a strong reason not to: any difference would give the plaintiff an incentive to pick whichever jurisdiction provided the longer period, recreating the uncertainty that the Supreme Court sought to eliminate. We conclude, therefore, that there should be a single period of limitations for all suits in which the Constitution supplies the remedy.

Bieneman, 864 F.2d at 469. We agree, and follow the position adopted by the Seventh Circuit, as well as the Second and Sixth Circuits. See Chin v. Bowen, 833 F.2d 21, 23-24 (2d Cir. 1987); McSurely v. Hutchison, 823 F.2d 1002, 1004-1005 (6th Cir. 1987), cert. denied, 485 U.S. 934, 108 S. Ct. 1107, 99 L. Ed. 2d 269 (1988). Accordingly, we hold that the personal injury statute of limitations properly applies to Bivens claims.

We must next determine whether to apply retroactively our holding extending application of Wilson to Bivens actions. Appellants filed their suit more than three years after some of their claims accrued. They contend, however, that, they believed that the proper statute of limitations to apply, as dictated by Marshall, was Oregon's ten-year general catch-all provision. Accordingly, appellants argue that their claims should not be barred.

In Usher v. City of Los Angeles, 828 F.2d 556, 558-561 (9th Cir. 1987), we considered whether to apply Wilson to a Sec. 1983 cause of action that arose prior to the date of the Wilson decision but was not filed until after Wilson was issued. In that case, too, the cause of action would have been timely filed under application of the pre-Wilson statute of limitations but would be barred under the shortened statute of limitations imposed by Wilson. To resolve the issue, we considered the analysis set out in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971), in which the Supreme Court laid down three factors that a court must consider in determining whether to apply a newly formulated rule retroactively: "(1) whether the decision establishes a new principle of law; (2) whether retroactive application will further or retard the purposes of the rule in question; and (3) whether applying the new decision will produce substantial inequitable results." Barina v. Gulf Trading and Transp. Co., 726 F.2d 560, 563 (9th Cir. 1984) (applying Chevron, 404 U.S. at 106-07, 92 S. Ct. at 355-56). We determined in Usher that all three factors weighed against application of Wilson to the facts presented in that case.

First, we noted that Wilson interposed the one-year statute of limitations for personal injury claims in place of the circuit's longstanding rule that Sec. 1983 action filed in California were subject to a three-year statute of limitations. We held that it therefore marked a clear break from settled circuit authority. Second, we held that retroactive application would retard one of the purposes of the new rule, namely, the safeguarding of the rights of federal civil rights litigants. We further stated that it would neither further nor retard the other purposes of the Wilson rule as this circuit's clear enunciation of the previous rule had also served the goals of achieving certainty and uniformity in litigation. Third, we held that application of the final Chevron factor weighed against retroactive application, for it would yield substantial inequitable results to hold that the plaintiff "slept on his rights" where the plaintiff had no advance notice of the change announced in Wilson and such change did not unduly disadvantage the defendants. Id. at 560.

Applying the Chevron analysis to the case at bar, we find that, taken as a whole, Usher counsels against retroactive application of the Wilson rule to Bivens actions. The application of the first Chevron factor clearly militates against retroactive application of the Wilson rule. Our decision in Marshall all but foreclosed the possibility that anything other than Oregon's 10-year "catch-all" provision would be applied to appellants' Bivens claims. Application of Wilson, then, clearly breaks with precedent and establishes a new principle of law.

Application of the second Chevron factor produces less clear results. On the one hand, as stated in Usher, retroactive application would retard the safeguarding of the rights of federal civil rights litigants, one of the articulated purposes of Wilson. Moreover, it would neither further nor retard Wilson's goal of ease and uniformity in choosing a statute of limitations as this circuit's approach to the statute-of-limitations question before application of Wilson was to search for a single, generic statute within each state and therefore to provide uniformity and certainty. See Marshall v. Kleppe, 637 F.2d 1217 (9th Cir. 1980). Application of the "catch all" provision would, however, not appear to capture the personal nature of the wrongs suffered as well as the personal injury provision. On balance, however, we believe that the Supreme Court intended to place the safeguarding of federal rights above the goal of simply finding a statute of limitations that best describes them.

Consideration of the third Chevron factor--whether applying the new decision will produce substantial inequitable results--also militates against retroactive application in this case. " [I]t would yield 'substantial inequitable results' to hold that [appellants] 'slept on [their] rights' at a time when [they] could not have known the time limitation that the law imposed upon [them]." Gibson, 781 F.2d at 1339 (quoting Chevron, 404 U.S. at 108, 92 S. Ct. at 356 (citation omitted). Moreover, appellees have not shown they would be prejudiced by enforcing the rule prevailing at the time of their alleged wrongful acts. See id.

Accordingly, as in Usher, the application of the Chevron factors weighs heavily against applying the Wilson rule retroactively to Bivens claims where the effect of that application would be to shorten the limitations period. Thus, Oregon litigants who filed Bivens claims before the date of this decision, March 5, 1991, are not time-barred for claims arising from injuries occurring within ten-years of the filing date. Litigants filing after the date of this decision must file within ten years of the injury or two years of the date of this decision, whichever came first. See Usher, 828 F.2d at 561. As the district court applied Wilson to bar claims filed within the applicable statute of limitations, those claims will be remanded to the district court.



We recognized in Gibson v. United States, 781 F.2d 1334, 1342 n. 5 (9th Cir. 1986), cert. denied, 479 U.S. 1054, 107 S. Ct. 928, 93 L. Ed. 2d 979 (1987) that Wilson 's analysis "may require a re-examination of Marshall." We declined to make such a reexamination at that time on the ground that the plaintiffs in that case had filed suit before Wilson was decided and "we would not apply a shorter statute of limitations retroactively to bar claims such as plaintiffs' that were timely when filed." Id

Similarly, in Johnston v. Horne, 875 F.2d 1415, 1424 (9th Cir. 1989), citing Gibson, we applied a Washington catch-all statute of limitations provision to the plaintiff's Bivens action without addressing the issue of whether Wilson required application of a different statute of limitations. Like the plaintiffs in Gibson, the plaintiff in Johnston filed suit well before the Supreme Court issued Wilson, and his suit was therefore timely when it was filed.

Moreover, no reason existed to address the application of Wilson in Johnston as the applicable statute of limitations provision would have been the same under either the Wilson or Marshall rule. Under Marshall, the applicable statute of limitations provision is Wash.Rev.Code Sec. 4.16.080(2). See Johnston, 875 F.2d at 1424. That provision provides a three-year statute of limitations for "any other injury to the person or rights of another not hereinafter enumerated." As Wilson directs application of the statute of limitations applicable to personal injury, section 4.16.080(2), which the Supreme Court of Washington has declared "applies to causes of action claiming both direct and indirect injuries to the person or rights of another," would also apply under Wilson. See Stenberg v. Pacific Power & Light Co., 104 Wash. 2d 710, 709 P.2d 793, 794 (1985).

Thus, while in Johnston, 875 F.2d at 1424, we referred to the statute as a "residual" statute of limitations, it is, in fact, Washington's general personal injury statute of limitations and "residual" should be taken in that sense. See Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 102 L. Ed. 2d 594 (1989).


See e.g. Wilson 471 U.S. at 274-275, 105 S. Ct. at 1945-46 ("There is no reason to believe Congress would have sanctioned this interpretation ...); at 275, 105 S. Ct. at 1946-47 ("When Sec. 1983 was enacted, it is unlikely that Congress actually foresaw the wide diversity of claims that the new remedy would embrace"); at 277, 105 S. Ct. at 1947-48 ("Among the potential analogies, Congress unquestionably would have considered the remedies established in the Civil Rights Act to be more analogous to tort claims for personal injury ..."); at 279, 105 S. Ct. at 1948-49 ("Finally, we are satisfied that Congress would not have characterized Sec. 1983 as providing a cause of action analogous to state remedies for wrongs committed by public officials") (emphasis added)