Justices Mull Time Limit to Refile Leftover State Law Claims

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By Patrick Dorrian

The U.S. Supreme Court offered few clear clues during oral arguments Nov. 1 on how long employees and other plaintiffs who lose their case in federal court have to file any remaining state law claims in state court.

The case involves Stephanie Artis, a former D.C. Health Department employee, who says she was fired by the city for blowing the whistle about workplace discrimination. Her complaint alleged violations of both federal and D.C. law. A federal court dismissed the case, and Artis then missed the 30-day deadline to bring her remaining claims to the D.C. Superior Court.

The issue before the court in Artis v. District of Columbia is whether an employee whose federal job discrimination claims are dismissed by a federal judge has just 30 days to file in state court any state claims the federal judge didn’t dismiss or a longer period if one is provided by state rules. Or is the statute of limitations on the state law claims suspended, or “tolled,” while the case proceeds in federal court, giving the employee 30 days plus any time still remaining on the state filing deadline?

The answer is likely to have a broad effect on employers, employees, and federal parties generally. The federal rule in question (28 U.S.C. § 1367(d)) helps set the timeline for all cases brought in federal court that include state law claims, and thus applies regardless of what the party is suing over. It provides that the limitations period for any remaining state law claims “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

The federal rule is intended to encourage a party to bring all related claims together in a single case before a single court. Its purpose is to make sure a party may do so without forfeiting—through the expiration of a state or local court filing deadline—any state or local claims the federal court ultimately decides not to rule on.

What Did Congress Mean by ‘Toll’?

But what did Congress mean when it used the words “tolled” and “tolling” in §1367(d).

Artis’ attorney, Adam G. Unikowsky, told the justices “tolled” means to suspend, so §1367(d) must stop the clock from running on the time a party had a bring a claim in state court while the federal case is pending. The clock shouldn’t begin to run again until the claim is dismissed from the federal case or the federal case is dismissed without the federal court ruling on the state claim. That’s the common law rule and it’s one the Supreme Court has recognized as the usual rule, he said.

Thus, Artis should have had 30 days plus the nearly 13 months remaining on the three-year state statute of limitations on some of her state law claims and the extra few weeks on her other state law claim, which had a shorter, one-year state limitations period, Unikowsky said in pre-argument briefs submitted to the court. Unikowsky is a partner with Jenner & Block LLP in Washington.

The District of Columbia’s counsel, Loren L. AliKhan, countered that tolled or tolling in §1367(d) means to “remove or to take away the effect of.” Here, that means the law was simply meant to remove the penalty a plaintiff will face if a state statute of limitations expires on a state law claim while the federal case is pending, leaving the plaintiff with no time to refile the state claim in state court.

AliKhan said the D.C. Court of Appeals got it right when it rejected Artis’ attempt to bring her claims under District law in a D.C. court 59 days after the dismissal of her federal case. AliKhan is the deputy solicitor general of civil appeals in the District of Columbia Office of the Attorney General.

In support of their respective views, both sides cited traditional rules on how a law is interpreted, including whether its meaning is evident from the express language used by Congress or whether it’s necessary to probe deeper and consider Congress’ intent and the law’s history and development to discern its meaning.

Questioning Along Ideological Lines

The justices’ questions largely centered on those traditional rules of statutory construction and the support each side says it has for its preferred interpretation. The questions also broke down along increasingly familiar ideological lines.

Justice Elena Kagan asked, if you strip that 30-day language out of the rule, so it simply reads that the limitations period shall be tolled while the claim is pending in federal court, isn’t it clear that Congress meant to suspend state limitations periods while federal cases are pending? “I thought the ordinary meaning” of toll or tolling in the statute of limitations context is to suspend, she said. Why does the addition” of the 30-day reference support your view? she asked AliKhan.

It’s not just 30 days, AliKhan said. Section 1367(d) is unique, she said, because among federal laws of its type it references both a 30-day period and potentially longer state tolling periods. Congress knew when it enacted §1367(d) that most states have their own tolling rules for claims returning to state court from federal court, she said. In its brief to the court, the District said nearly 40 states provide their own tolling periods and that most of those provide for periods of six or 12 months for a party to refile in state court, which is considerably longer than the 30-day “federal floor” created by §1367(d).

The “stop-clock” reading of Section 1367(d) supported by Artis would have enabled her to wait roughly two years before refiling her state law claims in a local D.C. court, AliKhan said in the District’s brief. That reading would spur impractical and unfair results for states, employers, and federal defendants generally, because it would force them to defend “stale” claims, the brief argues.

Federal litigation can drag on for years and at the end of that time the memories of witnesses likely will have faded, AliKhan said during oral argument.

The District is backed in the case by the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the U.S. Conference Mayors, the International City/County Management Association, and the International Municipal Lawyers Association. Wisconsin and a coalition of 23 other states also filed a friend-of-the-court brief supporting D.C.

Unikowsky received several questions from the more conservative justices asking whether his view of the law doesn’t unfairly read out of the federal rule the clause providing that a plaintiff gets more than 30 days in situations where state law allows it. Justice Anthony M. Kennedy asked whether Unikowsky’s interpretation makes that language “unnecessary.”

Unikowsky replied that there are some situations where the clause would apply under Artis’ 30-days-plus view of the rule. For example, if only five days were left on the state filing deadline when the federal case was brought, the plaintiff would benefit from a state tolling rule that provides more than 35 days (5 days plus 30 days under the federal rule) to refile a state law claim, he said.

Intrusion on States’ Rights?

The justices also questioned whether Artis’ reading of the statute would intrude on states’ rights to set and enforce their own time limits for claims in state courts. Justice Samuel A. Alito asked: “Are there any constitutional limits” on Congress’ extending a state law filing period?”

“Yes,” there are, Unikowsky said. But they’re not relevant here because the tolling rule that Congress sets forth in §1367(d) serves a necessary federal purpose by regulating the federal courts’ handling of unresolved state claims when a federal case is dismissed, he said.

But the state law claim was already brought and being pursued as part of the federal case, Alito said. Why, he asked, does a plaintiff need extra time beyond 30 days?

“It’s not as simple as that,” Unikowsky responded. The unresolved state claims aren’t simply being refiled in state court. It also needs to be determined which state or local court they should be filed in, which specific legal claims or theories should be asserted, and whether the plaintiff needs to find a new lawyer in the event the lawyer who was handling the federal case doesn’t practice in state court, he said.

But Chief Justice John G. Roberts said the purpose of statutes of limitations, by and large, is to protect the defendant. “I’m not sure your argument makes sense,” he told Unikowsky. Roberts also said the idea of telling states they need to consider dated claims seems to raise Constitutional concerns.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editor responsible for this story: Terence Hyland at thyland@bna.com

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