The opinion of the court was delivered by: OBERDORFER
LOUIS OBERDORFER, U.S.D.J.
Defendants are former agents of the Federal Bureau of Investigation ("FBI") who were involved in varying degrees in the FBI COINTELPRO
program. In June 1984, the Court of Appeals affirmed this Court's order denying defendants' motion for a judgment notwithstanding a jury verdict against them. Hobson v. Wilson, supra. The jury found that defendants had engaged in a complex conspiracy, actionable under 42 U.S.C. § 1985(3),
to violate First Amendment rights of certain plaintiffs. The Court of Appeals remanded the case to this Court for redetermination of damages and expungement of certain FBI files. On March 25, 1985, the Supreme Court denied defendants' petition for a writ of certiorari. Thereafter, pursuant to the Court of Appeals' remand order, this Court resumed administration of the case.
In the course of these resumed proceedings, defendants moved to dismiss the complaint on the theory that it was time barred by a "specially prescribed" District of Columbia statute of limitations which provides a one-year limitations period "for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment." D.C. Code § 12-301(4) (1981). Defendants argue that, in addition to the contentions which have previously been made on this issue to this Court,
the Court of Appeals,
and the Supreme Court,
the Supreme Court's April 17, 1985 decision in Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254, now requires application of the one-year statute rather than the three-year statute which was applied by this Court and upheld by the Court of Appeals. Defendants and plaintiffs agree that defendants' renewed attempt to raise this issue is not precluded by law of the case doctrine, as there has been an intervening change in applicable law. See Plaintiffs' Memorandum of Points and Authorities in Opposition to Defendants' Motion to Dismiss ("Plaintiffs' Memorandum") at 3 n.1; Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss ("Defendants' Memorandum") at 6 n.3. All of the defendants renew their motion to dismiss on the ground that the entire cause of action is time barred. In addition, defendant Pangburn has renewed his motion for a new trial, in part because the Court of Appeals set aside the verdict against the members of the District of Columbia Metropolitan Police Department, whom the jury had also found to have been involved in a related conspiracy against plaintiffs.
There is no federal statute of limitations specifically applicable to actions to redress constitutional torts. The federal courts must therefore "borrow" the local common law as modified or changed by statute.
See Burnett v. Grattan, 468 U.S. 42, 104 S. Ct. 2924, 2929, 82 L. Ed. 2d 36 (1984). The District of Columbia statute of limitations provides in relevant part that:
Except as otherwise specifically provided by law, actions for the following purposes may not be brought after the expiration of the period specified below from the time the right to maintain the action accrues:
(4) for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment -- 1 year.
(8) for which a limitation is not otherwise specially prescribed -- 3 years.
D.C. Code §§ 12-301(4) and (8) (1981).
Defendants first pleaded the one-year provision to Judge John H. Pratt (to whom this case was originally assigned). Judge Pratt denied the plea without prejudice. Hobson v. Wilson, No. 76-1326 (D.D.C. Nov. 9, 1979). They unsuccessfully renewed the one-year statute plea in this Court both before and after the verdicts against them. See Memorandum and Order of October 29, 1981 at 2; 556 F. Supp. at 1174. The defendants' challenge to the denial of their motions for a directed verdict on statute of limitations grounds focused on the complex fraudulent concealment issue which had been presented to the jury by instructions and by a special verdict form. See 556 F. Supp. at 1174-79; 737 F.2d at 32-42. Only defendant Jones argued in the Court of Appeals that the one year rather than the three year statute applied. Nevertheless, before commencing its discussion of the fraudulent concealment issue the Court of Appeals ruled that:
When no federal statute of limitations governs the period of repose for actions brought under the Civil Rights Act, or under the rationale of Bivens v. Six Unknown Named Agents, 403 U.S. 388, [29 L. Ed. 2d 619, 91 S. Ct. 1999] (1971) a federal court must look to the limitations period applicable to the most nearly analogous state cause of action. [Footnote omitted.] On that basis, it is clear that the three-year limitations period provided in D.C.Code Ann. § 12-301 (8) (1981) controls this case. n.99 [Footnote quoted below.]
737 F.2d at 32. In an explanatory footnote, the Court of Appeals went on to state:
n.99 Section 301 provides a three-year limitations period for claims ". . . for which a limitation is not otherwise specially prescribed." D.C.Code Ann. § 12-301(4) (1981) provides a one-year limitations period "for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment," and is inapposite. McClam v. Barry, 225 U.S. App. D.C. 124, 697 F.2d 366 (D.C.Cir. 1983), is not to the contrary. McClam adopted the one-year limitations period because the constitutional claim was for an assault, which is specifically identified in D.C.Code Ann. § 12-301(4). Indeed, McClam specifically distinguished an earlier Bivens action [ Eikenberry v. Callahan, 209 U.S. App. D.C. 377, 653 F.2d 632, 635 n. 11 (D.C. Cir. 1981)] based on the First Amendment, which had adopted the three-year period. Id. at 372. We reject, as based on a misreading of McClam, any argument that McClam decided that all Bivens actions are controlled by the one-year limitations period.
All defendants then pursued the one-year limitations plea in their Petition for a Writ of Certiorari. The petition argued that:
The decision below conflicts with Garcia v. Wilson, 731 F.2d 640 (10th Cir. 1984), certiorari granted (Oct. 1, 1984) . . . . The court in this case borrowed the three-year limitations period in D.C. Code § 12-301(8) for claims not otherwise "specifically prescribed," rather than the one-year period in D.C. Code § 12-301(4) applicable to actions "for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment." . . . Garcia holds that for statute of limitation purposes, actions seeking redress for violation of constitutional rights shall be treated as actions "for injury to personal rights." 731 F.2d at 651. Accordingly, the court in Garcia looked to the state statute applicable to suits for "injury to the person or reputation." For the reasons stated in Garcia v. Wilson, the court of appeals in this case therefore should have applied D.C. Code § 12-201(4), which provides a one-year limitations period for intentional injury to personal rights and reputation. [footnote omitted]
Petition for a Writ of Certiorari at 22.