SUPREME COURT OF THE UNITED STATES

No. 96–663

MARVIN KLEHR, et ux., PETITIONERS v. A. O. SMITH CORPORATION and A. O. SMITH HARVESTORE PRODUCTS, INC.

on writ of certiorari to the united states court of appeals for the eighth circuit

[June 19, 1997]

Justice Scalia, with whom Justice Thomas joins, concurring in part and concurring in the judgment.

Twice this Term we have received full briefing and heard oral argument on the question of when a civil RICO cause of action accrues; when we rise for our summer recess, the question will remain unanswered. We did not reach it in Grimmett v. Brown, 519 U. S. ___ (1997), because we dismissed the writ of certiorari as improvidently granted. And we do not reach it today for no particular reason except timidity—declining to say what the correct accrual rule is, but merely rejecting the only one of the four candidates under which these petitioners could recover. We thus leave reduced but unresolved the well-known split in authority that prompted us to take this case. There will remain in effect, in some Circuits, one of the three remaining accrual rules—the one that their Courts of Appeals or District Courts have adopted; in the remaining Circuits litigants will have to guess which of the three to follow; and in all of the Circuits no one will know for sure which rule is right—until, at some future date, we receive briefing and argument a third or fourth time, and finally summon up the courage to "unravel," as one commentator has put it, "the mess that characterizes civil RICO accrual decisions," Abrams, Crime Legislation and the Public Interest: Lessons from Civil RICO, 50 SMU L. Rev. 33, 70 (1996).

Worse still, the reason the Court gives for regarding the accrual issue as too complex ("subtle and difficult," ante, at 12) to be decided on only the second try is a reason that implicates the merits, and that in my view gets the merits wrong. One cannot, the Court says, leap impetuously to the conclusion that the antitrust "injury" accrual rule applies, rather than a "discovery" accrual rule, because civil RICO cases are unlike antitrust cases, in that "a high percentage" of them "involve fraud claims." Ante, at 10. This erases, it seems to me, the one clear path back out of the current forest of confusion, which is the proposition that RICO is similar to the Clayton Act. This is the proposition that caused us to adopt the Clayton Act statute of limitations in the first place, specifically rejecting the argument the Court now finds plausible, that the preponderance of fraud claims under RICO makes the Clayton Act an inappropriate model. We said the similarity was close enough: "Although the large majority of civil RICO complaints use [fraud] as the required predicate offenses, a not insignificant number of complaints allege criminal activity of a type generally associated with professional crimes such as arson, bribery, theft and political corruption." Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U. S. 143, 149 (1987) (rejecting for this reason the use of state-law fraud statutes of limitations). Elsewhere in today's opinion, curiously enough, the Court is quite willing to say that what is good for antitrust is good for RICO—even with respect to a matter much more intimately connected with fraud than the accrual rule, namely, whether invocation of the "fraudulent concealment" rule requires "reasonable diligence" on the plaintiff's part. On this point the Court finds arguments taken from "the related antitrust context" entirely persuasive. Ante, at 14–15. (Apart from that illogical reliance, it seems to me also illogical even to resolve the question of whether a statute should be tolled by fraudulent concealment without having resolved the antecedent question of when the statute begins to run.) Similarly, the Court relies heavily on the antitrust injury accrual rule in its analysis rejecting the Third Circuit's last predicate act rule. Ante, at 7–10.

I would resolve the Circuit split we granted certiorari to consider, and would hold that, of the four main accrual rules (injury, injury discovery, injury and pattern discovery, and last predicate act), the appropriate accrual rule is the Clayton Act "injury" rule—the "cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiff's business." Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U. S. 321, 338 (1971) (referring, of course, to "an act" that violates the governing statute) In Malley- Duff, we held that the appropriate statute of limitations for civil RICO actions is the 4-year limitations period found in the Clayton Act. We reasoned that "RICO was patterned after the Clayton Act," 483 U. S., at 150, and that the purpose, structure, and aims of the two schemes were quite similar, id., at 151–152. Although we expressly acknowledged in Malley-Duff that we "ha[d] no occasion to decide the appropriate time of accrual for a RICO claim," id., at 157, it takes no profound analysis to figure out what that decision must be. "Presumably the accrual standards developed by the lower federal courts in . . . civil antitrust litigation should be equally applicable to civil enforcement RICO actions." 1 C. Corman, Limitation of Actions §6.5.5.1, pp. 447–448 (1991).

We have said that "[a]ny period of limitation . . . is understood fully only in the context of the various circumstances that suspend it from running against a particular cause of action." Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 463 (1975). It is just as true, I think, that any period of limitation is utterly meaningless without specification of the event that starts it running. As a practical matter, a 4-year statute of limitations means nothing at all unless one knows when the four years start running. If they start, for example, on the tenth anniversary of the injury, the 4-year statute is more akin to a 14-year statute than to the Clayton Act. We would thus have been foolish, in Malley-Duff, to speak of "adopting" the Clayton Act statute, and of "patterning" the RICO limitation period after the Clayton Act, if all we meant was using the Clayton Act number of years.

We have recognized this principle in our more established practice (first departed from in DelCostello v. Teamsters, 462 U. S. 151 (1983)) of borrowing state rather than federal statutes of limitations. We have consistently followed "[s]tate law . . . in a variety of cases that raised questions concerning the overtones and details of application of the state limitation period to the federal cause of action. Auto Workers v. Hoosier Corp., 383 U. S. [696,] 706 [(1966)] (characterization of the cause of action); Cope v. Anderson, 331 U. S. [461,] 465–467 [(1947)] (place where cause of action arose); Barney v. Oelrichs, 138 U. S. 529 (1891) (absence from State as a tolling circumstance)." Johnson, supra, at 464. See also, e.g., Chardon v. Fumero Soto, 462 U. S. 650, 657, 662 (1983). "In virtually all statutes of limitations the chronological length of the limitation period is interrelated with provisions regarding tolling, revival, and questions of application. Courts thus should not unravel state limitations rules unless their full application would defeat the goals of the federal statute at issue." Hardin v. Straub, 490 U. S. 536, 539 (1989) (internal quotation marks and citation omitted). There is no conceivable reason why the same principle should not apply to the borrowing of an analogous federal, rather than state, limitations period.

Both the allurement and the vice of the "mix-and-match" approach to statutes-of-limitation borrowing (the possibility of which the Court today entertains) is that it provides broad scope for judicial lawmaking. We should have resisted that allurement today, as we resisted it in the past: "[W]e find no support in our cases for the practice of borrowing only a portion of an express statute of limitations. Indeed, such a practice comes close to the type of judicial policymaking that our borrowing doctrine was intended to avoid." Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U. S. 350, 362, n. 8 (1991) (emphasis added). It is, in other words, no wonder that the Court finds the question it has posed for itself today "subtle and difficult"; judicial policywonking is endlessly demanding, and constructing a statute of limitations is much more complicated than adopting one. Finding the most analogous cause of action whose limitations provision can be adopted is relatively simple (for the cause of action before us, we did it in Malley-Duff); but limiting the adoption to merely the term of years set forth in the limitations provision, and then selecting, to go with that term of years, the precise accrual rule, tolling rule, estoppel rule, etc. that will clothe the limitations-naked statute with an ensemble of policy perfection—well that is, I concede, a task that should not be attacked all at once, but rather undertaken piecemeal, over several decades, as the Court has chosen to do today. I prefer to stand by the ruder, humbler, but more efficient and predictable practice we have followed in the past: When we adopt a statute of limitations from an analogous federal cause of action we adopt it in whole, with all its accoutrements. Perhaps (though I am dubious) there is room for an exception similar to the one made in our state-borrowing practice, see Hardin, supra, that would permit rejection of an element that "would defeat the goals of the federal statute at issue," 490 U. S., at 539. But unless this exception is to gobble up the rule, nothing so extreme is represented by the Clayton Act accrual rule.

Applying the Clayton Act accrual rule, I agree with the Court that petitioners' cause of action accrued more than four years before the filing of this action on August 27, 1993. See ante, at 11. Since the Court of Appeals determined, under a more relaxed accrual rule, that petitioners should have discovered all of the RICO elements (which would include their injury) prior to 1989, it follows, a fortiori, that under the Clayton Act injury accrual rule, petitioners' cause of action is untimely.

I also agree with the Court that petitioners are not entitled to invoke the fraudulent concealment doctrine. As the Court persuasively demonstrates, in the antitrust context "`[t]he concealment requirement is satisfied only if the plaintiff shows that he neither knew nor, in the exercise of due diligence, could reasonably have known of the offense.'" Ante, at 14 (quoting 2 P. Areeda & H. Hovenkamp, Antitrust Law ¶338b, p. 152 (rev. ed. 1995)). I therefore join Part III of the Court's opinion.

For the foregoing reasons, I concur in the judgment of the Court.