On the Meaning of Congressional Silence: Using Federal Common Law to Fill the Gap in Congress's Residual Statute of Limitations

By Mikva, Abner J.; Pfander, James E. | The Yale Law Journal, November 1997 | Go to article overview

On the Meaning of Congressional Silence: Using Federal Common Law to Fill the Gap in Congress's Residual Statute of Limitations


Mikva, Abner J., Pfander, James E., The Yale Law Journal


Of the many gaps in the scheme of federal law, few have so vexed the federal judiciary as those that result when Congress creates a federal cause of action but fails to specify a period of limitations to govern the timeliness of the suit.(1) Such congressional omissions have occurred with monotonous regularity and frequently confound the judicial branch: The federal courts have struggled in recent years to supply the measures of timeliness that Congress left out of the civil rights laws of 1871,(2) the securities law of 1934,(3) and the plant closing legislation of 1988.(4) Such judicial struggles reflect in part the amorphous nature of the gapfilling process. Under the standard learning, federal courts supply omitted time limits by borrowing the most analogous statute of limitations from state law.(5) When, as often happens, a good many analogous state statutes present themselves, federal judges must make a choice from among plausible alternatives.(6) Judges understandably chafe under the burden of choosing statutes of limitations, particularly in light of the judicial perception that Congress ought to assume primary responsibility for fixing limitations periods.(7)

Judicial efforts to shift the task of setting limits to Congress culminated in the 1990 report of the Federal Courts Study Committee, recommending that Congress establish particular time limits for all existing federal causes of action.(8) Although Congress responded in part with the passage of the Judicial Improvements Act of 1990,(9) the provision dealing with limitations periods stopped well short of the recommendation. Now codified as [sections] 1658 of title 28, the relevant provision simply states, "Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of enactment of this section may not be commenced later than 4 years after the cause of action accrues."(10) Section 1658 thus establishes a fallback or residual limitations period for claims arising under statutes enacted after December 1, 1990,(11) but remains silent as to what periods of limitation should govern the more than two hundred express and implied rights of action arising under statutes already in existence on the date of the legislation (i.e., preenactment federal statutes).(12)

Judges and academic commentators generally view [sections] 1658's silence about the timeliness of claims arising under such preenactment statutes as a serious gap in the new law. Federal judges who testified before the House Subcommittee recognized that [sections] 1658 does not directly address the period of limitations for the "myriad" of existing federal rights of action: they criticized what they saw as Congress's decision to force judges to "continue to grope"(13) for an analogous state limitations period to borrow. Leading academic accounts of the section agree with this judicial criticism,(14) portraying Congress as having failed to discharge its legislative function and arguing for further legislation to fill the gap in [sections] 1658.(15) The decisional law points in the same direction: Federal courts that have faced such questions since 1990 have generally continued to determine the timeliness of claims arising under preenactment statutes by following the established state law borrowing mode; the courts have uniformly rejected arguments for reliance on the four-year limitations period of [sections] 1658 as an appropriate measure of the timeliness of such existing rights of action.(16)

In this Essay, we contend that [sections] 1658 may go further to solve the problem of the timeliness of federal claims than others have assumed. Although the statute does not by its terms establish a limitations period for claim arising under preenactment federal statutes, federal courts can reliably exercise their common-lawmaking powers to borrow the four-year residual period of [sections] 1658 as the limitations period for many such claims. …

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