ALAN MCSURELY, PETITIONER V. GEORGE W. HUTCHISON
   No. 87-679
   In the Supreme Court of the United States
   October Term, 1987
   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Sixth Circuit
   Brief for the Respondent in Opposition
            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statutory provision involved
   Statement
   Argument
   Conclusion
                            OPINIONS BELOW
   The opinion of the court of appeals (Pet. App. 1a-8a) is reported
at 823 F.2d 1002.  The opinions of the district court (Pet. App.
9a-53a) are unreported.
                             JURISDICTION
   The judgment of the court of appeals was entered on July 24, 1987.
The petition for a writ of certiorari was filed on October 22, 1987.
The jurisdiction of this Court rests on 28 U.S.C. 1254(1).
                     STATUTORY PROVISION INVOLVED
   Section 413.140(1)(a) of the Kentucky Revised Statutes Annotated
(Michie/Bobbs-Merrill 1972 & Supp. 1986 provides:
         Actions to be brought within one year.  -- (1) The following
      actions shall be commenced within one (1) year after the cause
      of action accrued:
         (a) An action for an injury to the person of the plaintiff,
      or of her husband, his wife, child, ward, apprentice or servant.
                          QUESTION PRESENTED
   Whether the court of appeals erred in affirming the dismissal of
this Bivens action on the ground that the suit was precluded by
Kentucky's one-year statute of limitation for personal injuires.
                               STATEMENT
   On November 2, 1981, petitioner and his former wife initiated this
suit in the United States District Court for the District of Columbia
against the Federal Bureau of Investigation (FBI), the Department of
Health and Human Services, the Office Of Personnel Management, and
respondent George W. Hutchison, a former FBI agent.  As the result of
several rulings /1/ (none of which were appealed), petition emerged as
the sole plaintiff, respondent emerged as the sole defendant, and
petitioner's claims rested solely on allegations that respondent was
liable in damages, under the principles of Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for
violation of petitioner's constitutional rights.
   While petitioner's action was pending, this Court decided Wilson v.
Garcia, 471 U.S. 261 (1985), which held that the timeliness of actions
brought under 42 U.S.C. 1983 alleging deprivation of constitutional
rights is determined by reference to statutes of limitation governing
tort claims for personal injuries.  Respondent requested the district
court to reconsider its previous statute of limitation ruling in light
of Wilson.  On December 11, 1985, the district court granted
respondent's motion and dismissed petitioner's action with prejudice.
Pet. App. 9a-18a.  The court concluded that this Court's reasoning in
Wilson concerning actions brought under 42 U.S.C. 1983 was equally
persuasive in Bivens actions (Pet. App. 16a).  It accordingly held
(id. at 18a) that petitioner's action was precluded by Kentucky's
one-year statute of limitation for personal injuries.  See Ky. Rev.
Stat. Ann. Section 413.140(1)(a)(Michie/Bobbs-Merrill 1972 & Supp.
1986).  /2/
   The court of appeals affirmed the district court's decision.  It
first observed that the district court was correct in finding that
"the record, when construed most favorably to (petitioner), leads
inescapably to the conclusion that the limitations period began to run
against (petitioner) more than one year prior to the filing of his
complaint" (Pet. App. 4a).  Next, the court of appeals determined that
"an action against a federal officer for violation of a plaintiff's
constitutional rights is analogous to 42 U.S.C. Sections 1981 and 1983
actions commenced against a state officer" (Pet. App. 5a).  The court
accordingly held that "(t)he reasoning of Wilson * * * appears to
apply persuasively to the characterization of Bivens claims for
purposes of applying statutes of limitations" (Pet. App. 5a) and
affirmed the district court's selection of the one-year Kentucky
statute of limitation for an "action for an injury to the person" (Ky.
Rev. Stat. Ann. Section 413.140(1)(a)(Michie/Bobbs-Merrill 1972 &
Supp. 1986)) in place of Kentucky's five-year period for "an action
for an injury to the rights of the plaintiff, not arising on contract
and not otherwise enumerated" (id. Section
413.120(7)(Michie/Bobbs-Merrill 1972)).  Pet. App. 6a.
   The court of appeals rejected petitioner's contention that this
Court's decision in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971),
required that the one-year limitation period apply "prospectively
only" (Pet. App. 7a).  The court determined that it could not
"conclude that any longer applicable statute had been clearly
established for Bivens-type cases at the time (petitioner's) cause of
action arose here, which would make retroactive application of the
rule unfair, or otherwise violative of the principles of Chevron v.
Huson" (Pet. App. 7a).  The court accordingly affirmed dismissal of
petitioner's complaint on statute of limitation grounds.
                               ARGUMENT
   Petitioner contends that his Bivens action is not subject to
Kentucky's one-year statute of limitation for personal injuries.  He
further contends that, even if that is the appropriate statute of
limitation, the district court should not have applied that limitation
period in this case.  The court of appeals correctly rejected these
contentions.  Its decision is consistent with Wilson v. Garcia, supra,
and does not conflict with any decision of this Court or another court
of appeals.  There is, accordingly, no warrant for further review.
   1. "When Congress has not established a time limitation for a
federal cause of action, the settled practive has been to adopt a
local time limitation as federal law if it is not inconsistent with
federal law or policy to do so." Wilson v. Garcia, 471 U.S. at 266.
In Wilson, this Court held that the timeliness of actions brought
under 42 U.S.C. 1983 alleging deprivation of constitutional rights
should be determined by reference to the local statute of limitation
governing tort claims for personal injuries.  In this case, the court
of appeals applied the reasoning of Wilson to Bivens actions, and
concluded that the same statutes of limitation should apply.
   This result is both sensible and correct.  Section 1983 actions
against state officials and Bivens actions against federal officials
are closely analogous remedies.  The Court has frequently relied
simultaneously without comment or distinction on Bivens and Section
1983 cases.  E.g., Forrester v. White, No. 86-761 (Jan. 12, 1988),
slip op. 5;  Lake Country Estates, Inc. v. Tahoe Regional Planning
Agency, 440 U.S. 391, 405 n.30 (1979);  Butz v. Economou, 438 U.S.
478, 496-504 (1978).  The lower courts follow the same practice.  See,
e.g., Ellis v. Blum, 643 F.2d 68, 84 (2d Cir. 1981).
   Thus, it is wholly appropriate that Bivens actions and Section 1983
actions should be subject to the same statutes of limitation.  Bivens
claims, like Section 1983 claims, "can be favorably analogized to more
than one of the ancient common-law forms of action, each of which may
be governed by a different statute of limititions" (Wilson, 471 U.S.
at 272-273).  Both remedies "encompass() a broad range of potential
tort analogies, from injury to property to infringements of individual
liberty" (id. at 277).  But both remedies ultimately stress protection
of personal constitutional rights.  Compare Wilson, 471 U.S. at
277-279, with Bivens, 403 U.S. at 389-390, 391-392, 395-397.  Thus,
Bivens claims, like Section 1983 claims, "are best characterized as
personal injury actions" (Wilson, 471 U.S. at 280) for purposes of
borrowing an approprate state statute of limitation.  See also Goodman
v. Lukens Steel Co., No. 85-1626 (June 19, 1987)(applying Wilson's
reasoning to 42 U.S.C. 1981 actions).
   Since this Court decided Wilson, only the Sixth Circuit here, and
the Second Circuit in Chin v. Bowen, 833 F.2d 21 (1987), have
addressed the question whether Bivens actions should be subject to the
same statutes of limitation as Section 1983 actions, and both have
concluded that the same statutes of limitation should apply.  Indeed,
Chin rejected the precise arguments petitioner presents here, finding
them "wholly unpersuasive" (id. at 23-24).  Contrary to petitioner's
assertion, there is not "clear conflict between the Sixth and Ninth
Circuits" (Pet. 14).  The Ninth Circuit encountered the issue in
Gibson v. United States, 781 F. 2d 1334 (1986), cert. denied, No.
86-676 (Jan. 20, 1987), but declined to decide it, stating:
         The Supreme Court has yet to decide whether its reasoning in
      Wilson v. Garcia means that Bivens claims should also be
      analogized to state personal injury tort claims for limitation
      purposes.  Recognizing that Wilson may require a re-examination
      of Marshall v. Kleppe, (637 F.2d 1217 (9th Cir. 1980),) * * * we
      do not find this an approprate occasion for so doing:  even were
      we to overrule Marshall, we would not apply a shorter statute of
      limitations retroactively to bar claims such as plaintiffs' that
      were timely when filed.
   Gibson, 781 F.2d at 1342 n.5 (emphasis added).  /3/ This, the Ninth
Circuit has not determined whether Wilson's reasoning should be
applied to Bivens actions.  See also Chin, 833 F.2d at 24 n.4 (noting
that the Sixth Circuit "is the only Court of Appeals to consider the
question presently before us").
   There is accordingly no post-Wilson conflict in the circuits on
this questions and no need for this Court to address it now.
   2. Petitioner's contention that the district court should have
prospectively applied its ruling is likewise not worthy of further
review.  "The usual rule is that federal cases should be decided in
accordance with the law existing at the time of decision." Goodman,
slip op. 4-5 (citing cases).  "But Chevron Oil Co. v. Huson, 404 U.S.
97 (1971), advises that nonretroactivity is appropriate in certain
defined circumstances." Goodman, slip op. 5.  At a minimum, "the
decision to by applied nonretroactively must establish a new principle
of law, either by overruling clear past precedent * * * or by deciding
an issue of first impression whose resolution was not clearly
foreshadowed" (Chevron Oil Co., 404 U.S. at 106 (citations omitted)).
This case fails to satisfy even that test.  The Sixth Circuit, upon
reviewing its own precedents, stated:
         We are unable to conclude that any longer applicable statute
      had been clearly established for Bivens-type cases at the time
      plaintiff's cause of action arose here, which would make
      retroactive application of the rule unfair, or otherwise
      violative of the principles of Chevron v. Huson.
   Pet. App. 7a-8a.  /4/ The Sixth Circuit's law concerning the
approprate limitation period for Bivens actions was perhaps unsettled,
but that situation is insufficient to support nonretroactive
application of the clarifying decision.  See Goodman, slip op. 5-6;
Smith v. Pittsburgh, 764 F.2d 188, 194-195 (3rd Cir.), cert. denied,
474 U.S. 950 (1985).
   Petitioner further contends that further review is warranted
because the Sixth Circuit's refusal to give its decision retroactive
effect conflicts with the Ninth Curcuit's decision in Gibson v. United
States, supra.  The different results in petitioner's case and Gibson,
however, simply reflect the Ninth Circuit's determination that
applications of Wilson's reasoning to Biven's actions would result in
the overruling of clearly established Ninth Circuit precedent.  See
Gibson, 781 F.2d at 1342 n.5, citing Marshall v. Kleppe, 637 F.2d 1217
(9th Cir. 1980).  This circumstance does not reflect any disagreement
among the circuits with respect to principles governing
nonretroactivity determinations and does not present any question
warranting this Court's review.  Indeed, this Court has already given
the lower courts ample guidance for applying Chevron Oil Co.
principles.  See Goodman v. Lukens Steel Co., supra;  Saint Francis
College v. Al-Khazraji, No. 85-2169 (May 18, 1987), slip op. 3-4.
   Finally, there is no merit to petitioner's contention that the
Sixth Circuit should have looked to the law of the D.C. Circuit --
where the suit was originally filed -- to make its retroactivity
determination.  As the Sixth Circuit explained (Pet. App. 7a-8a):
         Clearly, it would be inequitable, under Chevron standards, to
      permit the plaintiff to bring suit in Kentucky that is barred by
      the Kentucky statute of limitations, upon the basis that he was
      originally justified, by a District of Columbia statute of
      limitations, in bringing the action in the District of Columbia,
      which has no interest in the parties or the claim.
   Petitioner's contention on this score is tied to the particular
procedural history of this case and presents no question of national
or continuing importance justifying this Court's review.
                              CONCLUSION
   The petition for a writ of certiorari should be denied.
   Respectfully submitted.
   CHARLES FRIED
      Solicitor General
   RICHARD K. WILLARD
      Assistant Attorney General
   JOHN F. CORDES
      Attorney
   FEBRUARY 1988
   /1/ The court initially dismissed the action against the three
government agencies and transferred the remaining claims against
respondent to the United States District Court for the Western
District of Kentucky.  On November 22, 1983, that court dismissed the
wife's complaint and four counts of petitioner's complaint (Pet. App.
37a-53a).  The district court denied respondent's motion to dismiss
four other counts and ordered supplemental briefing on the statute of
limitation issues regarding those counts (id. at 50a).  On September
18, 1984, the district court ruled that one of the remaining counts
was barred by the statute of limitation (id. at 22a) but that three
other counts were not (id. at 35a).  The district court also granted
petitioner's motion for leave to file an amended complaint (id. at
36a).
   /2/ The court specifically found that petitioner's cause of action
accrued more than one year before the suit was filed, stating (Pet.
App. 9a-10a):
         (I)n the previous opinion dealing with the statute of
      limitations, this Court held that plaintiff knew of Hutchison
      and his involvement in the matters complained of in this action
      at least as early as September 24, 1979, and that this knowledge
      was implemented on July 15 and 31, 1980 when plaintiff deposed
      FBI Special Agent Burke, used exhibits with the initials "GWH,"
      and questioned Burke about defendant Hutchison.  It further will
      be recalled that the plaintiff's action was not filed until
      November 2, 1981.
   /3/ In Marshall, the court of appeals held that Bivens actions
arising in California are subject to the four-year catch-all period of
limitations set forth in Section 343 of the California Civil Procedure
Code (West 1982).  See 637 F.2d at 1223-1224.
   /4/ Petitioner's contention (Pet. 14-15) that "Sixth Circuit law
had a clear precedent" for the appropriate statute of limitation in
his case is inaccurate.  The two Sixth Circuit cases cited by
petitioner (Pet. 15) -- Mason v. Owens-Illinois, Inc., 517 F.2d 520
(1975) and Garner v. Stephens, 460 F.2d 1144 (1972) -- are not Bivens
cases.  They are, respectively, 42 U.S.C. 1981 and 42 U.S.C. 1983
actions.