Appeal from an order of the United States District Court for the Eastern District of New York, Edward R. Neaher, Judge, dismissing a cause of action brought on the basis of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619,
Mansfield, Van Graafeiland, Circuit Judges, and Mishler, Chief Judge.*fn*
MANSFIELD, Circuit Judge:
On January 29, 1975, over one year after his arrest on November 15, 1973, appellant brought suit in the Eastern District of New York against state and federal law enforcement officers, alleging a violation of his Constitutional rights on the basis of 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), a conspiracy to deprive him of the equal protection of the laws under 42 U.S.C. § 1985(3), and various acts tortious under New York law. On the motion of the federal defendants Judge Neaher dismissed the Bivens claim on the ground that it was time-barred under N.Y.C.P.L.R. § 215(1), which provides that an action against "a sheriff, coroner or constable" based on conduct in his official capacity must be commenced within one year. The claim under § 1985(3) was dismissed for failure to allege discriminatory animus, and the pendent state claims as time-barred under N.Y.C.P.L.R. § 215(3), which provides a one-year period for actions based on intentional torts. Because we find N.Y.C.P.L.R. § 215(1) inapplicable to the instant suit and because New York's "single publication" rule does not extend to part of appellant's state libel claim, we reverse in part and remand for further proceedings.
Appellant's complaint joined as defendants the United States, an Assistant United States Attorney (Edward Boyd), three special agents of the Federal Bureau of Investigation (Joseph F. Sullivan, George Van Nostrand, and Francis R. Jules), a U.S. Customs Agent (Donald Gratin), and three members of the New York City Police Department (John F. Callaghan, James M. Harkins and Howard Greenwald), alleging violations of his Constitutional and civil rights and the commission of certain common law torts. Specifically, he alleged that the defendant law enforcement officers had, without probable cause, arrested and searched him and otherwise violated his Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendment rights, that defendant Boyd had authorized the filing of a criminal complaint against him, and that as a result of the defendants' actions there had appeared newspaper articles stating that he had been arrested and charged with robbing a warehouse. In addition to his federal claims under the Constitution and 42 U.S.C. §§ 1983 and 1985(3), appellant requested that the court exercise pendent jurisdiction over state tort claims for slander and defamation, invasion of privacy, false arrest, abuse of process, and malicious prosecution.
The district court, in an order not on appeal here, dismissed appellant's claims against the United States on the ground of sovereign immunity and against Boyd on the ground of prosecutorial immunity. The remaining federal defendants then moved to dismiss appellant's Bivens and state tort law claims as time-barred and his claim under 42 U.S.C. § 1985(3) for failure to allege discriminatory animus. The district court granted their motion, certifying its decision to this court as a final order under Rule 54(b) of the Federal Rules of Civil Procedure, from which plaintiff appeals. The suit against the city police officers continues below.
Appellant first argues that the district court applied the wrong New York statute of limitations to his Bivens claim or, in the alternative, that we should formulate a federal statute of limitations for Bivens claims based on the Federal Tort Claims Act, 28 U.S.C. §§ 2401(b) & 2680(h).
Generally where "there is no specifically stated or otherwise relevant federal statute of limitations . . ., the controlling period would ordinarily be the most appropriate one provided by state law." Johnson v. Railway Express Agency, 421 U.S. 454, 462, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975). "A special federal statute of limitations is created, as a matter of federal common law, only when the need for uniformity is particularly great or when the nature of the federal right demands a particular sort of statute of limitations." Chevron Oil Co. v. Huson, 404 U.S. 97, 104, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971). The threshold question here, therefore, is whether there is any special reason for the formulation or adoption of such a uniform period to govern suits against federal employees.
If a federal statute prescribing a longer period of time than those specified by some otherwise-applicable state statutes of limitations existed, there would be public policy advantages to borrowing the federal statute and applying it to a Bivens-type action. A short limitations period, such as one year, might significantly interfere with ongoing criminal investigations by the FBI and other federal law enforcement agencies. Since one of the most hotly contested issues in any Bivens action is likely to be whether the defendant officers acted with "good faith and reasonable belief in the validity of the arrest and search," Bivens, 456 F.2d 1339, 1348 (2d Cir. 1972) (on remand), once a suit is filed discovery will probably be attempted to determine whether the officers had probable cause for their actions. If the criminal investigation is still going on, revelation of the FBI's sources may seriously jeopardize the agency's investigatory efforts. Here, for example, the Attorney General has specifically ordered that the probable cause for appellant's arrest not be revealed. The defendant agents therefore find themselves in the awkward, if not untenable, position of having to argue that it is too early for this suit to go forward for discovery purposes, but too late for it to go forward for limitations purposes. Were we to apply a short state limitations period to Bivens actions, every person subject to a challengeable search or arrest would have to file suit shortly thereafter in order to preserve his rights, and considerable discovery pressures might thereby be placed on federal criminal investigations. A longer limitations period, by contrast, would allow more Bivens plaintiffs to wait until the relevant criminal investigations had run their course before bringing suit. Moreover, once the entire picture was disclosed, fewer Bivens cases might be brought.
The only federal statute that might arguably be applied to a claim of the present type is the Federal Tort Claims Act, 28 U.S.C. § 2680(h), which was amended, effective March 16, 1974, to render its two-year limitations period, 28 U.S.C. § 2401(b), applicable to Bivens-type claims against the United States. However, the amendment does not apply to the claims here since they are against federal employees, and, even if they had been asserted against the United States, they arose prior to the effective date of the amendment. Moreover, under the amendment such claims against the United States must be presented in writing to the appropriate federal agency within two years of the accrual of the cause of action and the action must be brought within six months of the denial of the claim by that agency, 28 U.S.C. § 2401. Were we to establish a limitations period of two years or less for Bivens claims against federal employees, a complainant asserting his claims shortly before the expiration of the period would have to file an action against the employee while filing a claim with the agency. He could not, however, join the agency as a defendant in his lawsuit until it denied his claim. 28 U.S.C. § 2675. Presumably the action would meanwhile have to be stayed. If and when the agency denied the claim, permission would then have to be obtained to join the agency as a defendant. Otherwise two separate suits would be required. The employee might be found liable in one but judgment be rendered for the agency in the other, which would run contrary to the purposes of § 2680(h). The problems presented are thus somewhat analogous to those presented in McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S. Ct. 1201, 2 L. Ed. 2d 1272 (1958), where the Court held that, in view of the practical necessity of joining a seaman's unseaworthiness and Jones Act claims in one action, a state could not apply a shorter period applicable to one when it would have the effect of barring the other. A short Bivens statute would similarly deprive plaintiffs of the full benefits of 28 U.S.C. § 2401.
Turning to New York law, there are four possibly applicable sections of New York's Civil Practice Law and Rules:
(1) § 214(2), which provides a three-year limitations period for "an action to recover upon a liability, penalty or forfeiture created or imposed by statute except as provided in sections 213 and 215."
(2) § 215(1), which provides a one-year limitations period for "an action against a sheriff, coroner or constable, upon a liability incurred by him doing ...