dissenting:
I adhere to the result reached in McClam v. Barry, 697 F.2d 366 (D.C.Cir.1983), for two reasons. First, the majority’s application of section 12-309 to common law torts ignores the extremely broad language and purpose of Congress. Second, the majority improperly interprets the meaning of the “deficiency” requirement of the federal borrowing doctrine, and fails to consider the appropriateness of borrowing this notice-of-claims provision.
I.
That Congress did not specifically consider whether the Act should apply to constitutional torts does not compel the majority’s conclusion. “[I]t is no bar to interpreting a statute as applicable that ‘the question which is raised on the statute never occurred to the legislature.’ ” Eastern Airlines, Inc. v. CAB, 354 F.2d 507, 511 (D.C.Cir.1965), quoting B. Cardozo, Nature of the Judicial Process 15 (1921). Both the language and purpose of section 12-309 expressly cover the constitutional claims at issue.1 As McClam points out, “the language of the provision is unquestionably broad; it cannot be read to contain even a hint that it applies only to common-law claims.” 697 F.2d at 369. As the majority concedes, “the Act’s stated purposes — to provide the District an opportunity to investigate claims when all evidence is still fresh, to allow the District to seek out early settlement of meritorious claims, and generally to protect the District’s revenues from unreasonable suits — would certainly be fulfilled all the more by giving the Act as broad a reading as its language would allow.” Maj. op. at 1502. See Dellums v. Powell, 566 F.2d 216, 230 (D.C.Cir.1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978); Pitts v. District of Columbia, 391 A.2d 803, 807 (D.C.1978). See generally H.R.Rep. No. 2010, 72d Cong., 2d Sess. (1933) [“House Report”]. These purposes “would be significantly undercut by the exclusion from its coverage of all federal or even all constitutional claims for damages.” McClam, 697 F.2d at 369. Here, the majority removes from the notice provision all “causes of action that ... are creations of federal law.” Maj. op. at 1500.
While acknowledging that the words and purpose of the Act are broad enough to cover the case before us, the majority nevertheless limits the applicability of the inclusive language of the Act to common law torts. This limitation is in no way prescribed, or even suggested, by the language of section 12-309. It also conflicts with the expansive reading the District of Columbia courts have given the statute.2 The majority bases this limitation on the lack of “evidence that Congress envisioned itself to be acting as other than a local legislature protecting a municipality from the threat of excessive common law tort liability.” Maj. op. at 1502. In fact, the legislative history that the majority claims supports its conclusion speaks to an entirely different issue. Although the House Report did “explicitly analogize[ ] [the Act] to similar legislation passed in the states to govern other municipalities,” maj. op. at 1502, that analogy was employed solely for the purpose of defending the period chosen “within which the notice must be filed.” House Report at 2. It was not used to justify the bill, nor was it raised in the context of a discussion of the scope of the *1511Act’s coverage. The words of the statute are plain, and they clearly cover this case. Absent any evidence on this question, we should not speculate whether Congress was acting in a “local” or “national” capacity. In any ease, the common characterization of congressional legislation for the District as local or national has little utility here. Whatever usefulness such terms have when a court examines a question such as whether the equal protection clause requires that Congress’ legislation for the District be uniform with its legislation for the nation, see, e.g., United States v. Thompson, 452 F.2d 1333, 1339-41 (D.C. Cir.1971), cert. denied, 405 U.S. 998, 92 S.Ct. 1251, 31 L.Ed.2d 467 (1972), such categories do not assist in determining whether Congress intended a notice provision to apply to all causes of action that are covered by the words Congress used.
There seems to be at work here a canon of construction or a line of jurisprudential reasoning with which I am unfamiliar. The majority’s position rests upon a distinction between common law tort actions for liquidated damages and actions arising out of federal law for unliquidated damages. But there is no indication whatever that Congress had in mind any such distinction. 1933 was not a year so remote in legal antiquity that Congress must be presumed not to have understood that damage claims could be premised on federal law. Neither then nor at any time since has Congress shown any signs of regret that the plain language it used covered more than common law torts.
That section 12-309 had its genesis in congressional reaction to a recommendation by this court in a case involving a common law tort in no way suggests that the statute’s broad language, which covers all damage claims, must be confined to common law torts. Reasoning from the particular to the general is hardly unheard of in law, and it is certainly a form of reasoning not to be denied to legislatures by courts. Had section 12-309 had its origin in a reaction to a case involving a federal cause of action, it is very much to be doubted that the majority would deny the law any application to common law tort claims. If I am right, this must mean that the court is proceeding on an unarticulated and undefended premise which holds that damage claims arising out of federal law are, in some way left wholly undefined, so different from common law claims that a statute reading on both can be applied only to the latter. I do not know what argument could be constructed to support that conclusion. None appears in the majority’s opinion. This court simply says to Congress: you said it; your policy requires it; but we can’t believe you meant it.
In the’ end, all the reader learns is that the majority is unwilling to read “injury or damage” as used in section 12-309 to include “injury or damage” arising out of federal law torts as well as common law torts. This is unfortunate, because the Supreme Court has made clear that, for the purposes of applying local procedural rules,3 there is nothing “peculiar to a federal civil rights action that would justify special reluctance in applying state law.” Johnson v. Railway Express Agency, 421 U.S. 454, 464, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295 (1975). See McClam v. Barry, 697 F.2d at 373. A fortiori, there should be no reluctance to apply a statute enacted by Congress itself.4
In sum, the language of section 12-309 covers all torts, whether common law or constitutional. “[T]he absence of any legislative history in point should not outweigh the words of the statute.” See Souder v. Brennan, 367 F.Supp. 808, 812-13 (D.D.C. *15121973), quoted in Breen v. District of Columbia, 400 A.2d 1058, 1061 (D.C.1979). Moreover, the statute’s purpose is undercut by limiting it to constitutional torts, much as its efficacy would have been significantly diminished had it not been extended to intentional torts. Breen, 400 A.2d at 1062-63.
II.
Although Congress’ express language ought to be dispositive of the issue before us, the same conclusion — that section 12-309 bars the claims before us — is required if we treat the statute as analogous to state law and apply federal borrowing doctrine. That doctrine calls for the following inquiry. We first examine federal law to determine if it is deficient. If federal law does not cover the issue, we must then borrow the law of the forum state, if appropriate, unless that law is inconsistent with federal law. Burnett v. Grattan, — U.S. —, —, 104 S.Ct. 2924, 2930, 82 L.Ed.2d 36 (1984); 42 U.S.C. § 1988 (1982). Since I think that federal law is deficient and that section 12-309 is both appropriate for this claim and is not inconsistent with any of the relevant federal policies identified by the Supreme Court, I believe section 12-309 should be “borrowed” and applied here.
A.
The majority considers federal law to be “deficient” only if it does not supply a rule that is a “universally familiar procedural aspect)] of litigation,” maj. op. at 1506,5 and if federal law does not provide rules that “clearly establish the point at which a cause of action ends.” Id. at 1505. The deficiency requirement, however, does not admit of such a niggardly definition. The cases establish that federal law should be considered “deficient” and courts should turn to the law of the forum state if federal law does not cover the issue. Deficiency, then, has been, and should be, used only in the sense of a “void” in federal law. Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 1794-1795, 64 L.Ed.2d 440 (1980). Applying this correct standard, there is clearly a void or deficiency in the common law of constitutional torts that section 12-309 can fill.
The majority engages in an inquiry far different from the one the Supreme Court has specified.6 In Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978), for example, the Court borrowed a state survivorship statute which caused the action to abate, and refused to create a federal common-law rule of survivorship. The Court expressly stated that “[resolution of this question turns on whether the state statute is ‘inconsistent with the Constitution and laws of the United States.’ ” 436 U.S. at 585, 98 S.Ct. at 1992, quoting 42 U.S.C. § 1988 (1976). Unlike the majority here, the Court did not engage in a lengthy inquiry as to whether federal law supplied “the complete legal framework necessary to the fair adjudication of federal causes of action.” Maj. op. at 1503. Nor did the Court consider whether the state survivorship statute is a “universally familiar procedural aspect)] of litigation” or whether it is “generally understood as essential to a fair scheme of litigation.” Id. at 1506.
In Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 *1513(1980), the Supreme Court also borrowed state law and applied a New York rule precluding tolling of the statute of limitations while an independent action was being pursued. Again, the Court’s definition of deficiency is very different from that of the majority:
Congress did not establish a statute of limitations or a body of tolling rules applicable to actions brought in federal court under § 1983 — a void which is commonplace in federal statutory law. When such a void occurs, this Court has repeatedly “borrowed” the state law of limitations governing an analogous cause of action.
Tomanio, 446 U.S. at 483-84, 100 S.Ct. at 1794-1795 (footnote omitted).
More recently, in Chardon v. Soto, 462 U.S. 650, 103 S.Ct. 2611, 77 L.Ed.2d 74 (1983), the Supreme Court affirmed the application of a local tolling rule providing that the statute of limitations begins to run anew when the tolling period ceases. The Supreme Court began its analysis by stating that “[t]he federal civil rights statutes do not provide for a specific statute of limitations, establish rules regarding the tolling of the limitations period, or prescribe the effect of tolling.” Id. at 2615. Citing 42 U.S.C. § 1988, the Court noted that “Congress ha[s] plainly instructed the federal courts to refer to state law when federal law provides no rule of decision for actions brought under § 1983.” 103 S.Ct. at 2616.
In Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), the Supreme Court borrowed a state statute of limitations, which precluded the plaintiff from bringing a suit under 42 U.S.C. § 1981, one of the civil rights statutes. The Court looked to the limitations period provided by state law “[sjince there is no specifically stated or otherwise relevant federal statute of limitations for a cause of action under § 1981.” 421 U.S. at 462, 95 S.Ct. at 1721.
The majority also suggests that courts should consider federal law deficient only when it does not provide rules “that clearly establish the point at which a cause of action ends.” Maj. op. at 1505. Aside from the fact that notice provisions do define such a point, this new requirement is inconsistent with the case law. Federal courts have not, in fact, limited the incorporation of state law to only those rules that state when a cause of action ends. When Congress has not provided a rule of decision for an action brought under section 1983, federal courts have gone on to fashion a range of “remedial details,” often by borrowing state law. As the Supreme Court has stated:
“The implied absorption of State statutes of limitation within the interstices of the federal enactments is a phase of fashioning remedial details where Congress has not spoken but left matters for judicial determination within the general framework of familiar legal principles.”
Runyon v. McCrary, 427 U.S. 160, 180, 96 S.Ct. 2586, 2599, 49 L.Ed.2d 415 (1976), quoting Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946) (emphasis added).
One example of a “remedial detail” with no bearing on the point at which a cause of action ends is the availability of punitive damages. For example, in Duchesne v. Sugarman, 566 F.2d 817, 821 n. 2 (2d Cir. 1977), the Second Circuit held that, under state law, the plaintiff’s claim for punitive damages did not survive, although the claims for compensatory and nominal damages did. The court was thus using state law to determine, not the end of the underlying cause of action, but the nature and amount of the remedy. See Jones v. Hildebrant, 191 Colo. 1, 6-8, 550 P.2d 339, 343-45 (1976) (en banc), cert. dismissed as improvidently granted, 432 U.S. 183, 97 S.Ct. 2283, 53 L.Ed.2d 209 (1977) (rebutting plaintiff’s contention that the only part of a state’s wrongful death statute that should be incorporated into federal law is the right to sue, not the state law of damages); James v. Murphy, 392 F.Supp. 641, 645 (M.D.Ala.1975) (federal court borrowed state wrongful death act which gave recovery for punitive damages only; the court *1514denied the motion to dismiss and allowed plaintiff, who had sought compensatory damages only, to amend).
The federal law contains no notice-of-claims provision applicable to constitutional torts. The District of Columbia has a notice-of-claims provision applicable to all torts because Congress thought it required by sound policy. That demonstrates a deficiency in the common law of constitutional torts.
That should be the end of the matter. But if a still stronger showing of a deficiency is wanted, that is available as well. I will demonstrate from, 1., the ubiquity of such provisions, 2., their overlap in policy and function with statutes of limitations, and, 3., the special need of municipalities for such provisions, that there can be no doubt that borrowing the District’s notice provision cures a deficiency in federal law.
1.
Because they serve a special function, notice provisions commonly apply to claims against government. For that reason, there are fewer notice provisions than there are statutes of limitations, which apply to all claims. But within the category of claims where notice provisions are useful, they are found very frequently indeed. As the majority states, at the time the bill was passed, “[t]he report accompanying the bill pointed out that ‘[sjimilar statutes are in effect in 32 states.’ ” Maj. op. at 1502, quoting House Report at 2. Today, such statutes are found in “most jurisdictions” and notice is “commonly required.” Annot., 51 A.L.R.2d 1132 (1957); 63 C.J.S. Municipal Corporations § 923, at 340 (1950). See Annot., 59 A.L.R.3d § 2[a], at 97 (1974); 56 Am.Jur.2d Municipal Corporations, Counties and Other Political Subdivisions § 680, at 725 (1971). It may be that, as applied to municipalities, notice provisions meet even the majority’s overly restrictive definition of “universally familiar procedural aspects of litigation.” I do not belabor that point, however, for it is clear that such provisions, like statutes of limitations, meet a widely felt need in litigation and that federal constitutional common law is “deficient,” in the technical sense at issue here, in not having one.
2.
Statutes of limitations and notice-of-claims provisions serve many of the same policies. For example, what the majority quotes Justice Rehnquist to say about the former applies with equal force to the latter.
The process of discovery and trial which results in the finding of ultimate facts for or against the plaintiff by the judge or jury is obviously more reliable if the witness or testimony in question is relatively fresh. Thus in the judgment of most legislatures and courts, there comes a point at which the delay of a plaintiff in asserting a claim is sufficiently likely either to impair the accuracy of the fact-finding process or to upset settled expectations that a substantive claim will be barred without respect to whether it is meritorious.
Tomanio, 446 U.S. at 487, 100 S.Ct. at 1796. See Burnett v. New York Central R. R., 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965), quoting Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-49, 64 S. Ct. 582, 586, 88 L.Ed. 788 (1944) (“Such statutes ‘promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared____’”).
The majority agrees that “Congress was clearly concerned with ensuring the freshness of evidence when it passed 12 D.C. Code § 309,” maj. op. at 1506, and that therefore this provision shares at least something in common with statutes of limitations. But the majority fails to see that section 12-309 fulfills another, very important purpose of the statute of limitations— that of defining “the point of repose ... after which expectations become settled.” Maj. op. at 1506. Section 12-309 gives the city assurance that, if it has learned of only certain claims for the prior six months, it may proceed in the settled expectation that there are no additional outstanding poten*1515tial liabilities. Knowing its potential exposure, the city may then deal, by investigation, settlement, or litigation with the population of claims as to which it has received notice.
Like statutes of limitations, notice-of-claims provisions go primarily to the remedy. 56 Am.Jur.2d, supra, § 691, at 733. Basically, both involve a legislative “value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones.” Johnson v. Railway Express Agency, 421 U.S. at 463-64, 95 S.Ct. at 1721-1722.7 According to the majority, however, section 12-309 is not part of any remedial scheme, but rather “add[s] elements to [a] federal right[] of action.” Maj. op. at 1508, citing Gwinn v. District of Columbia, 434 A.2d 1376 (D.C.1981) (holding that section 12-309 is a condition precedent to the accrual of rights against a municipality). Changing the characterization of the notice statute does not change the reality with which we should deal: the purpose of the statute and the policies it serves. It would be just as easy to say that filing within the period mandated by the statute of limitations is a condition precedent to maintaining an action for tort damages; that would then appear to add an element to a federal right of action. But this is merely playing with words. The point is that section 12-309 serves the same purpose as a statute of limitations, and that requiring notice within six months is no more “burdensome” on federal interests than is mandating filing within a limitations period. A notice-of-claims provision goes to the remedy in the same way that a statute of limitations does. Any attempt to view it as an element of the cause of action is logically indistinguishable from viewing a statute of limitations that way, too.8
3.
Notice-of-claims provisions, like the District’s section 12-309, are an adjustment of interests that produces a very fair result. The municipality’s need for notice is clear. As the New York Court of Appeals has pointed out:
Requiring notice allows a governmental subdivision a meaningful opportunity to investigate in a timely manner the circumstances that gave rise to a claim. The requirement of notice is one of the safeguards devised by the law to protect municipalities against fraudulent and state claims for injuries to persons and property.
Mills v. County of Monroe, 59 N.Y.2d 307, 310-11, 464 N.Y.S.2d 709, 711, 451 N.E.2d 456, 458, cert. denied, — U.S. —, 104 S.Ct. 551, 78 L.Ed.2d 725 (1983) (citation and interior quotation marks omitted).
A municipality needs a notice period that is shorter than the ordinary statute of limitations. For one thing, given the very wide range of services and facilities used by the public that a municipality provides, a municipality has many more ways of injuring *1516persons or property without knowing that it has done so than does any particular agent of the municipality or any individual or business. Because of the extensive and segmented bureaucracy that the provision of so many and so varied services and facilities requires, a city, particularly a major city like Washington, D.C., will often not receive timely and adequate notice of a likely claim from its own employees, even assuming that there is an employee who knows of a likely claim. The one person who is sure to know is the individual who thinks the city has in some tortious way injured his person or property. It makes eminent good sense, then, to require notice to the city within six months so that the facts may be investigated before they go stale, good claims paid, marginal claims compromised, and worthless claims shown to be such.
On the other hand, section 12-309 does not burden the claimant in his preparation for litigation. He need not prepare the facts and pleadings necessary to litigation within the six-month notice period. He need only give notice of “the approximate time, place, cause, and circumstances of the injury or damage.” A handwritten note will do, or, as the statute provides, a police report of the incident. After that, the claimant has the full period of the statute of limitations to file his claim in court, if the claim has not been settled.
It is apparent, then, that section 12-309 applies many of the policies of a statute of limitations to the special needs of a municipality, but does so with the minimum burden on the litigating needs of the claimant. It is ironic that, at least under the majority’s analysis, the statute would have had a better chance of being borrowed and applied if it were a true statute of limitations, and hence more burdensome to the assertion of rights in court, rather than a notice provision serving the same purposes less harshly.
B.
The appropriateness of applying section 12-309 to this lawsuit may be shown by applying the analysis followed by the Supreme Court in the recent case of Burnett v. Grattan, — U.S. —, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984). There the Court decided in the negative the question “whether a state law, establishing a procedure for administrative resolution of employment discrimination complaints, provides an appropriate statute of limitations for actions brought under the Reconstruction-era Civil Rights Acts, 42 U.S.C. § 1981 et seq.” Burnett, at —, 104 S.Ct. at 2926. Respondents Grattan and Hedman, white employees of a predominantly black college in Maryland, were told their contracts would not be renewed because of dissatisfaction with their work. They filed a suit against various officers of the college, alleging racial and gender discrimination. The district court dismissed the suit as barred by the applicable statute of limitations, Md.Ann. Code, Art. 49B, § 9(a). Because there was no limitation period provided by the federal statutes, the court borrowed a six-month limitation period from a state statute prohibiting discriminatory practices in employment. The court of appeals reversed, holding that a three-year statute of limitations should be chosen.
The Supreme Court affirmed because “functional differences” between the federal causes of action and the state administrative law made Article 49B an inappropriate statute of limitations to borrow. At -, 104 S.Ct. at 2928. “A state law is not ‘appropriate,’ ” the Court said, “if it fails to take into account practicalities that are involved in litigating federal civil rights claims and policies that are analogous to the goals of the Civil Rights Acts.” Id. at —, 104 S.Ct. at 2930. The Court’s analysis of the “functional” characteristics and “practicalities” involved demonstrates the appropriateness of borrowing section 12-309 for litigation against the District of Columbia.
The Court set out the characteristics of the federal law with which the characteristics of the state law were to be compared.
In the Civil Rights Acts, Congress established causes of action arising out of *1517rights and duties under the Constitution and federal statutes. These causes of action exist independent of any other legal or administrative relief that may be available as a matter of federal or state law. They are judicially enforceable in the first instance. The statutes are characterized by broadly inclusive language. They do not limit who may bring suit, do not limit the cause of action to a circumscribed set of facts, nor do they preclude money damages or injunctive relief. An appropriate limitations period must be responsive to these characteristics of litigation under the federal statutes.
At---, 104 S.Ct. at 2930.
The Court began “with the observation that borrowing an administrative statute of limitations ignores the dominant characteristic of civil rights actions: they belong in court.” At-, 104 S.Ct. at 2930. This meant attention to the complexities of preparing and initiating litigation and to the responsibilities that follow hard upon filing, such as being prepared to cope with motions and discovery. By contrast, under Maryland’s administrative scheme, a complainant had merely to make and sign a complaint under oath and file it with the state’s Human Relations Commission. Id. The complaint need contain only the name and address of the person or entity alleged to have discriminated and the particulars of the discrimination. The Supreme Court said that
[w]hen a legislature selects a statute of limitations to govern a particular cause of action, it takes into account the burdens borne by the parties to a suit of that sort____ The time limit established by the Maryland legislature reflects in part the minimal burden state law places on the administrative complaint, which does not correspond in any significant way to the substantial burden federal law places on a civil rights litigant.
Id. (footnote omitted). This legislative recognition of the difference led the legislature to choose a six-month limit for filing a grievance but gave the Human Relations Commission, which assumed the role of a litigant upon receiving a complaint, an additional two years in which to investigate, negotiate, settle, or bring formal charges against an employer.
The parallels to the statutory scheme provided by Congress for the District of Columbia are obvious — and those parallels all lead to the conclusion that here the borrowing is entirely appropriate. I will trace the application of the Supreme Court’s rationale to this case.
The tort claims governed by section 12-309, like claims brought under federal civil rights statutes, “belong in court.” To use Burnett’s criteria, both are judicially enforceable in the first instance; both are characterized by broadly inclusive language; neither limits who may bring suit; neither limits the cause of action to a circumscribed set of facts nor precludes money damages or injunctive relief. The tort claimant in the District of Columbia, if he must comply with section 12-309, at that stage bears none of the burdens of a litigant. Even if a police report has not relieved him of any obligation, the notice a plaintiff must file within six months is less burdensome than the sworn complaint the complainant must file within six months with Maryland’s Human Relations Commission. The Court noted that, as a litigant, the Human Relations Commission had an additional two years to act. In our case, once the notice is filed, the torts claimant, under the facts here, has an additional two- and-one-half years to investigate, negotiate, settle, or sue. Congress has taken into account the differing burdens involved in filing a notice and preparing for litigation and provided appropriate time periods for each.
The Supreme Court also rejected the six-month administrative time limit in Burnett v. Grattan because
[t]he divergence between the goals of the federal civil rights statutes and of the state employment discrimination administrative statute is clear in the present case. The goals of the federal statutes are compensation of persons whose civil rights have been violated, and prevention *1518of the abuse of state power. Board of Regents v. Tomanio, 446 U.S., at 488 [100 S.Ct. at 1797]; Robertson v. Wegmann, 436 U.S. 584, 590-591 [98 S.Ct. 1991, 1995-1996, 56 L.Ed.2d 554] (1978). That these are not the goals of the statute empowering Maryland's administrative agency to resolve employment discrimination complaints is apparent both because the remedial authority of the agency is limited, and because the state scheme does not create a private right of action. The stated goal of the state administrative procedure is the prompt identification and resolution of employment disputes. The administrative scheme, including a short statute of limitations, encourages conciliation and private settlement through the agency’s intervention in live disputes.
Id. at---, 104 S.Ct. at 2931-2932 (footnotes omitted).
Here, section 12-309 aids the prompt identification and resolution of disputes but it does not set a short time limit on the right to file suit. Appellant in this case had three years to file suit. Taken together, then — as they must be if “functional” characteristics and “practicalities” are to be compared — section 12-309’s six-month notice period and the three-year statute of limitations applicable to appellant Brown have the same distribution of burdens and benefits as those the Court thought appropriate in Burnett. Six months is appropriate for a notice provision, but a longer period — there an additional two years, here an additional two-and-one-half years — is appropriate for a limitation on the filing of litigation because the burdens of initiating litigation are much greater than those of filing a notice. Under the rationale of Burnett, Congress behaved entirely correctly in enacting section 12-309 as a notice period and three years as the statute of limitations. There can be no doubt that section 12-309 is an “appropriate” notice period to borrow.
C.
Having demonstrated that federal law is deficient under either of the two possible definitions of “deficiency” and that six months is an appropriate period to borrow, we need only consider whether section 12-309 is inconsistent with federal law. See supra p. 1501.
The Supreme Court has identified four policies for a federal court to consider in deciding whether to borrow a local procedural rule serving the policy of repose: deterrence, compensation, uniformity and federalism. . Chardon v. Soto, 103 S.Ct. at 2616. None of these policies would be offended by the application of section 12-309.
I note at the outset the Supreme Court has often stated that “[a] state statute cannot be considered ‘inconsistent’ with federal law merely because the statute causes the plaintiff to lose the litigation. If success of the § 1983 action were the only benchmark, there would be no reason at all to look to state law, for the appropriate rule would then always be the one favoring the plaintiff, and its source would be essentially irrelevant.” Robertson v. Wegmann, 436 U.S. at 593, 98 S.Ct. at 1996. See id. at 594-95, 100 S.Ct. at 1997-1998 (“[T]he mere fact of abatement is not sufficient ground to declare state law ‘inconsistent’ with federal law.”). We must, therefore, consider the specific effect of section 12-309 on each of these four policies.
Neither the policy of deterrence nor of compensation would be undercut by application of 12-309 “since plaintiffs can still readily enforce their claims, thereby recovering compensation and fostering deterrence, simply by” providing notice of their claim within six months. Tomanio, 446 U.S. at 488, 100 S.Ct. at 1797. Cf. Burnett v. Grattan, — U.S. at —, 104 S.Ct. at 2930 (noting the minor “practical difficulties” facing those who need only make, sign and file a complaint within six months). Similarly, there is no need for uniformity here. The Supreme Court has repeatedly refused to put aside state law for the sake of formulating or applying uniform federal rules in civil rights actions. For example, in Tomanio, the Court said *1519that “[t]he need for uniformity, while paramount under some federal statutory schemes, has not been held to warrant the displacement of state statutes of limitations for civil rights actions.” 446 U.S. at 489, 100 S.Ct. at 1797. And in Robertson v. Wegmann, the Court held
[W]hatever the value of nationwide uniformity in areas of civil rights enforcement where Congress has not spoken, in the areas to which § 1988 is applicable Congress has provided direction, indicating that state law will often provide the content of the federal remedial rule. This statutory reliance on state law obviously means that there will not be nationwide uniformity on these issues.
436 U.S. at 594 n. 11, 98 S.Ct. at 1997 n. 11. See Chardon v. Soto, 103 S.Ct. at 2619.
Finally, applying section 12-309 does not impede the goal of federalism. The policy of repose served by the Act is important to the federal as well as the state system. Tomanio, 446 U.S. at 488, 100 S.Ct. at 1797. As pointed out above, see p. 1514, supra, this statute ensures freshness of the evidence and helps prevent against unreasonable claims. It promotes justice. Burnett v. New York Central R.R., 380 U.S. at 428, 85 S.Ct. at 1054. It is not unreasonably short. Indeed, many other civil rights statutes have a similar, and sometimes shorter, notice requirement. See, e.g., statutes cited in note 4, supra.
Nor is the goal of federalism offended by borrowing a statute that applies only to a governmental entity. In Aitchison v. Raffiani, 708 F.2d 96, 100-03 (3d Cir.1983), and Kosikowski v. Bourne, 659 F.2d 105 (9th Cir.1981), the Third Circuit and the Ninth Circuit borrowed limitations periods from state tort claims acts. The Third Circuit held that
[i]t is not unreasonable for a state to assume that the public interest in the repose of claims against a governmental agency is worthy of special consideration. Also, the problem of preserving evidence may be more difficult when the defendant is an elected body whose members serve relatively short terms.
708 F.2d at 103. Here, Congress made that assumption and determined that the District of Columbia has a right to be notified of claims to be brought against it within six months.9
That the purpose of constitutional tort claims is to augment remedies against government subdivisions and officials does not mean that notice provisions are inconsistent with federal law. As the majority states, some limitation of remedy is always necessary. Therefore, especially where the policies a state law serves are so close to those of a statute of limitations and where the time period is not inappropriate, absent any congressional direction, federal courts ought not to substitute their own judgment for that of the state legislature.
The policies permitting recovery for constitutional torts do not require that we apply only the farthest reaching remedy. Both Congress — in enacting section 1988— and the Supreme Court have made clear that state law is to be our “primary guide” in this area. Johnson v. Railway Express Agency, 421 U.S. at 465, 95 S.Ct. at 1722. I dissent today because the majority ignores that injunction as well as Congress’ express language and purpose in enacting section 12-309. I believe the grant of the District’s motion for summary judgment should be affirmed.
. Although at oral argument counsel for the District of Columbia seemingly abandoned this theory, and said that the District's case depended solely on application of the federal borrowing doctrine, I do not believe that I am bound by those representations. Counsel was not abandoning a claim but rather a legal justification for a claim. I agree with the majority that McClam correctly focused on two inquiries. Maj. op. at 1501.
. The majority does not question those cases, although it says they have given the statute a "far broader application” than was originally intended. Maj. op. at 1502.
. See infra pp. 1503-1505 for a discussion of the similarities between notice-of-claims provisions and statutes of limitations.
. This inference is further supported by Congress’ express provision of similar notice requirements in various federal civil rights laws. See, e.g., 42 U.S.C. § 2000e-5(e) (1982) (requiring notice to EEOC of employment discrimination claim within 180 days of accrual of claim, or within 300 days in certain cases); 29 U.S.C. § 626(d)(1) (1982) (requiring notice to Secretary of Labor of age discrimination claim within 180 days of accrual of claim).
. Even accepting this incorrect view of the law, it is not at all clear that notice-of-claims provisions do not fall into this category. See infra pp. 1514-1516.
. Although these cases concerned claims brought under civil rights statutes rather than under the Constitution, the Court’s reasoning should apply equally to Bivens-type actions, which rest on the same policies as those behind 42 U.S.C. § 1983, the statute in issue in Chardon v. Soto, 462 U.S. 650, 103 S.Ct. 2611, 2616, 77 L.Ed.2d 74 (1983), Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980), and Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978).
Also, as the majority points out, Congress has codified the borrowing doctrine for civil rights statutes in 42 U.S.C. § 1988 (1982), and the Supreme Court has linked this statute to general federal borrowing practices. Johnson v. Railway Express Agency, 421 U.S. at 464, 95 S.Ct. at 1722.
. This conclusion is supported by the frequency with which federal courts look to notice-of-claims provisions to establish the limitations periods where there is no directly applicable statute of limitations. See, e.g., Delcostello v. International Bhd. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 2287-90, 76 L.Ed.2d 476 (1983). Cf. Zipes v. Trans World Airlines, 455 U.S. 385, 393-96, 102 S.Ct. 1127, 1132-1134, 71 L.Ed.2d 234 (1982).
. That the D.C. Court of Appeals has understood the notice requirement of § 12-309 to be a condition placed on the partial waiver of the District’s sovereign immunity is irrelevant, primarily because it is wrong. The District of Columbia has no sovereign immunity from liability for the non-discretionary acts of its employees which violate the Federal Constitution and laws. Owen v. City of Independence, 445 U.S. 622, 647-48, 100 S.Ct. 1398, 1413-1414, 63 L.Ed.2d 673 (1980). See Dellums v. Powell, 566 F.2d at 229. Having no immunity, the District of Columbia has nothing to waive, and cannot be said to be offending federal law by placing a condition on a waiver of something it does not have. Moreover, the legislative history contains no mention of sovereign immunity. It does not matter, in any event, whether or not one thinks of § 12-309 as a waiver of sovereign immunity. The conceptual origin of the provision is irrelevant given the clear evidence that Congress intended a notice-of-claims provision and could legislate that provision in any way it wished. The concept of sovereign immunity has nothing to do with this suit.
. The fact that Congress and not a state legislature enacted § 12-309 is of course not dispositive in the context of the federal borrowing doctrine, if the District of Columbia's provision is treated as a state law.