The Volokh Conspiracy

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Criminal Law

When Key Features of a Federal Law Don't Appear in the Main Text of the U.S. Code Entry


Wilson v. Hussman, decided yesterday by Judge Lawrence Piersol (D.S.D.) deals with a civil case brought over an alleged rape of a child on the Pine Ridge Indian Reservation; the rape allegedly occurred when plaintiff was 8 and 9 years old, around 1978 or 1979. A federal statute, enacted Sept. 16, 2022, changed the statute of limitations for such offenses, and the version in the main text of 18 U.S.C. § 2255 appears to entirely waive any time limits for such lawsuits:

… (a) In general.—Any person who, while a minor, was a victim of a violation of section 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor, may sue in any appropriate United States District Court and shall recover the actual damages such person sustains or liquidated damages in the amount of $150,000, and the cost of the action, including reasonable attorney's fees and other litigation costs reasonably incurred. The court may also award punitive damages and such other preliminary and equitable relief as the court determines to be appropriate.

(b) Statute of limitations.—There shall be no time limit for the filing of a complaint commencing an action under this section.

But the actual public law that enacted the statute also provides (as noted here),


This Act and the amendments made by this Act shall—

(1) take effect on the date of enactment of this Act; and (2) apply to—

(A) any claim or action that, as of the date described in paragraph (1), would not have been barred under section 2255(b) of title 18, United States Code, as it read on the day before the date of enactment of this Act; and

(B) any claim or action arising after the date of enactment of this Act. Approved September 16, 2022.

In Wilson, Judge Piersol concluded that plaintiff's claim is barred by the public law, even if that bar is not reflected in the main text of the U.S. Code version:

As indicated in the citation, P.L. 117-176 is codified in the Statutes at Large at 136 Stat. 2108. Where there is an inconsistency between the text of the United States Code section and the Statutes at Large, the language of the latter controls. 1 U.S.C. § 204(a). See Stephan v. United States, 319 U.S. 423, 426 (1943) ("… the Code cannot prevail over the Statutes at Large when the two are inconsistent"). See also Jewish Center for Aged v. U.S. Dept. of Housing and Urban Development, 2007 WL 2121691, *4 (E.D. Mo. 2007); Peart v. Motor Vessel Bering Explorer, 373 F. Supp. 927,928 (D. Alaska 1974). In the present case, the language of the Statutes at Large controls.

On its face, Section 3 eliminates the statute of limitations for actions or claims arising after enactment of the statute. Cases arising before that time require further analysis, however. In accordance with § (2)(A), it is necessary to assess whether an older claim would have been barred by the applicable statute of limitations before September 16, 2022.

Prior to the version of 18 U.S.C. § 2255 now in effect [and starting in 2013], the statute provided a ten-year statute of limitations which began to run on the later of the plaintiff s discovery of the violation or discovery of the injury, or not later than ten years after the victim reached the age of eighteen…. [The] ten-year statute of limitations … would not have revived a claim such as Plaintiffs dating from more than three decades earlier….

In her complaint, Plaintiff asserts the alleged rapes occurred when she was 8 and 9 years old. Based on her statement that she was 12 when she ran away in 1982, the Court assumes a birthdate of sometime in 1970. It is possible she could have pursued a civil action when 18 U.S.C. § 2255 was amended in 1986 to authorize civil suits for certain sexual assaults. Apparently, Plaintiff did not do so. The September 16, 2022, amendment to 18 U.S.C. § 2255 that Plaintiff cites as eliminating the statute of limitations does so only for certain cases, and Plaintiffs is not in that category. Plaintiff's lawsuit is barred by the statute of limitations, 18 U.S.C. § 2255, and has not been revived by any of the ensuing amendments to the statute.

A reminder that, when you're looking at U.S. Code provisions, you should always check the notes that follow them (e.g., here)—though I expect many lawyers don't do that, and of course laypeople (such as the plaintiff here) are even more likely not to do it. Indeed, in principle one ought to always check the Public Law version as well as the U.S. Code version, though I expect even fewer lawyers reliably do that.