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),

SEC. 3. EFFECTIVE DATE; APPLICABILITY.

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.

Comments

[The Turtle Dove]

Not a practitioner, but perhaps this is relevant. In addition to always clicking to the "notes" tab on the Cornell US Code site, pay attention to the asterisks on this page:

https://uscode.house.gov/

If the section has an asterisk, the codification has been enacted as positive law. If not, the session laws govern. Another useful page, at least from a research point of view, is the Comps:

https://www.govinfo.gov/app/collection/comps/

(Essentially markup of overlapping session laws for uncodified bills.)

Mr. D.

[Voize]

Actually, today's lesson teaches that even when the Code title has that asterisk, as Title 18 does, you can't assume that all relevant text can be found in the codified statute.

The judge gets the right result although his explanation, citing Stephan v. United States, is not quite correct. That 1943 case dealt with U.S. Code Title 46, which was not positive law until 1983. In that situation the Public Law has legal effect, but the codified version is only a summary and does not.

A second situation is when a Title first becomes positive law. This is accomplished by passing a bill (that becomes a new Public Law) that repeals the old Public Laws that comprised the Title and replace them with an enacted codified Title. Sometimes during this process Congress takes the opportunity to amend the text so the new codified version is deliberately different from the old. In this scenario the codified version is law, and the new Public Law that created it is law, but the old Public Laws are no longer in effect.

But the case in the OP deals with a third situation. After a Title becomes positive law it may be amended by a subsequent Act of Congress. Public Law 117-176 isn't a law that got replaced by codified positive law, it is a law that in one section amends preexisting codified positive law, and in another section controls how the amendment comes into force. The second section is law too, and affects the positive law code even though it doesn't modify it. This is pretty common too, and when the Office of the Law Revision Counsel updates the Code it attaches these non-amending but relevant provisions of law as Statutory Notes.

So, as Prof. Volokh recommends, don't skip the notes!

[The Turtle Dove]

Right. Actually, the notes are sort of a catch-all. They’ll list the sources, amendment history, relevant provisions, etc. So the first step (looking for current law) is always to see if the Title has been enacted. Once it has been, it’s my understanding that subsequent amendments (saving implied repeal, etc.) invariably specifically reference the lines of the Code being amended, and the notes then list them seriatum in amendment history.

And when the title is enacted, the old PLs are completely superseded, I think. No matter whether the language from the old PLs is changed.

So: In the beginning, all is chaos, and in the formless void, you have a melange of session laws, and you have to figure out how they mesh together. This is what the comps do for major bills in unenacted titles. Amendments are several, and the session laws directly amend each other; you need to look for last-in-time in the event of conflict. Then the Congress creates a title of the code, and a portion of the formless void suddenly turns into an outline, superseding the primordial ooze of the raw laws underneath. Subsequent amendments reference specific places in the hard outline of this compilation.

As you point out, looking for the law at the time of cited precedent is a slightly different exercise, but that’s another level of the chess board.

Mr. D.

Edited to change "codified" to "enacted" in para. 1.

[The Turtle Dove]

And, vis a vis that additional level of the chess board — looking at law that was valid during the time of cited precedent — because the universe loves coincidence, I came across this in Puchta (19th c, German jurisprudence) today:

“Hence, whatever may be the date at which the operation of a Law may begin, — whether it be the date of the actual publication of it, or sooner, or later — the Law can only be applied to cases that arise after that date, and not to earlier cases. Simple as this Rule is, its application may sometimes become difficult, from uncertainty as to whether a certain case is to be reckoned as belonging to the facta futura or preterita. And this holds especially when the case in question is not entirely limited to a definite point in time, but extends through a certain period during the currency of which the operation of the Law begins. For example, a Law may alter the time during which a certain Right can be acquired or lost; and then the question will then emerge as to how its application bears upon those cases in which the currency of their relative periods had already begun, but was not yet ended. Or again, the Law may change the effects of a certain fact which have not yet become complete, or even may not as yet have appeared. The decision of such questions will turn mainly upon the nature of the facts to be dealt with, but there are two Rules which must guide us with reference to them. These Rules are first, that any fact that is not yet completed cannot be called a factum praeteritum; and second, that Rights already acquired, even though the time for their exercise has not yet come, are not to be infringed by the application of a new Law.”

Mr. D.

Edit: misc. typo

[mydisplayname]

An "amen" to the paragraph which begins "A reminder that."

[Goju]

Something I am not understanding. The statute of limitations ran out on the rape. The rapist was thus no longer legally criminally liable to prosecution. The new law removes the statute of limitation. Is the rapist now, once again, liable for prosecution?

IANAL, so I may very well be misunderstanding this.

[Noscitur a sociis]

This is about the statute of limitations for a civil suit, not for a criminal prosecution. (There is no criminal statute of limitations for most federal sex offenses.)

[Eric VonSalzen]

Boy am I glad I'm not the young lawyer who missed this!

[Dr. Ed 2]

Who says that it was accidental?

Other than embarrassment, is there any penalty for doing this?
And if no one else catches it, you've just won a nice paycheck.

So who says it was accidental?

[Sarcastr0]

As if often the case, you can assume evil or oversight.

You chose evil.

[dwb68]

How does such inconsistency arise and how is it fixed?

[Darth Buckeye]

Always check to see if a statute has been amended and check for the effective dates of those amendments. Maybe that is obvious to me because it was the world I lived in when I was doing tax litigation.