Argument analysis: The Supreme Court’s word of the day is “tolled”

Artis v. District of Columbia turns largely on a single word — “tolled.” The justices spent nearly an hour yesterday pondering what that word means in the context of the federal supplemental-jurisdiction statute. Although some justices signaled that they believe the answer is clear, others seemed less certain.

As detailed in my argument preview, the Supreme Court’s task in this case is to determine how much time a plaintiff has to refile state claims in state court after a federal court declines to exercise supplemental jurisdiction over them. Under the relevant statutory provision, 28 U.S.C. § 1367(d), “[t]he [state] period of limitations … shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” Stephanie Artis reads this language to mean that once a plaintiff brings a qualifying state claim in federal court, the clock stops on the applicable state statute of limitations, and the state limitations period remains suspended until the federal court dismisses the claim. In contrast, the District of Columbia maintains that Section 1367(d) merely removes an otherwise applicable state time bar and gives the plaintiff a 30-day grace period to refile. To illustrate the parties’ dispute more concretely, imagine that a plaintiff files suit in federal court one year into a two-year state limitations period and the court dismisses the suit 18 months later. Under Artis’ reading, because the state limitations period was suspended during the pendency of the federal case, the plaintiff has another year — plus an additional 30 days — to refile the suit before the limitations period expires. Under the city’s reading, the state statute of limitations has already run its course, but the plaintiff has a 30-day grace period after the dismissal of the federal suit to refile in state court before the state time bar takes effect.

By and large, the justices appeared to view Artis’ reading of the statutory text as the more natural one. Artis’ counsel, Adam Unikowsky, met with only a few serious challenges to his text-based arguments. At one point, the justices even afforded him the rare luxury of several uninterrupted minutes to make his case. Justice Samuel Alito was Unikowsky’s most skeptical interlocutor. He zeroed in on Section 1367(d)’s final clause, which states that the federal tolling rule governs “unless State law provides for a longer tolling period.” States, Alito pointed out, generally give litigants additional time to file by establishing grace periods rather than by suspending limitations periods. Alito suggested that this poses a difficulty for Artis’ position: If “toll” necessarily equates with “suspend,” then those state grace-period laws would appear not to provide “longer tolling period[s],”  — an odd result because it would fail to give effect to state measures designed to accommodate litigants in state court. Alternatively, if those state grace-period laws do create longer tolling periods, then for the sake of consistency perhaps Section 1367(d)’s earlier directive that “the period of limitations … shall be tolled” should be construed to refer to a grace period as well. Without taking a firm position on the status of those state grace-period laws, Unikowsky suggested some potential ways around the dilemma and stressed other textual features of Section 1367(d) that accord with the suspension approach. Unikowsky noted, for instance, that what is “tolled” under the statute is a “period of limitations” (and not a “statute of limitations” or a “limitations bar”), and that it is more coherent to speak of a time period being suspended rather than removed. He also explained that if Congress had meant merely to establish a grace period, it would not have needed to toll the limitations period “while the claim is pending in federal court.”

The justices pressed Unikowsky somewhat more vigorously about potential reasons for disfavoring the suspension approach even if it has a textual edge. Alito, along with Chief Justice John Roberts and Justice Sonia Sotomayor, wondered if the suspension approach gives plaintiffs an excessive amount of time to refile, potentially burdening defendants and the state. Several justices added a federalism and constitutional-avoidance gloss to these practical concerns. Roberts, Alito and Justice Anthony Kennedy all observed that the suspension approach displaces state statutes of limitations to a greater extent than the grace-period approach — a concern because states have a sovereign interest in establishing rules for their courts. Justice Neil Gorsuch contributed to this line of inquiry when, during Unikowsky’s rebuttal, he asked whether the Supreme Court should apply the presumption against pre-emption to the tolling of state limitations periods. Relatedly, Alito and Gorsuch both asked about the potential constitutional limits on Congress’ authority to extend state statutes of limitations. The court, Unikowsky responded, held in Jinks v. Richland County that it is constitutional for Congress to toll state limitations periods in at least some form, which should suffice to validate the suspension approach because it is the standard, ubiquitous tolling mechanism. The suspension approach, Unikowsky added, appropriately protects federal litigants by putting them in the same position after a federal suit is dismissed that they were in immediately before the suit was filed.

Arguing for the city, Loren AliKhan, the deputy solicitor general for the District of Columbia, had essentially the flip side of Unikowsky’s experience. AliKhan encountered some significant pushback as she sought to establish the textual bona fides of the city’s grace-period approach. Justice Ruth Bader Ginsburg began by asking whether “any other federal statute uses the words ‘shall be tolled’ to mean … shall continue to run.” AliKhan acknowledged that there are none, but emphasized that Artis’ preferred approach also lacks good analogs because other tolling statutes do not have Section 1367(d)’s two distinctive features — namely, the specification of a 30-day window and deference to longer state tolling periods. Justice Elena Kagan, seconded by Justice Stephen Breyer, expressed concern that the city’s position was at odds with what they viewed as the ordinary, intuitive meaning of “tolled”:  “If I’m just any old lawyer, ‘tolled’ means one thing when it’s … referring to a statute of limitations…. [I]t means you stop the clock.” The chief justice similarly suggested that he viewed a “period of limitations” as something that would be suspended. Reinforcing these intuitions, Kagan observed that, had Congress wanted to write a grace-period statute, it easily could have adopted clear language to that effect, drawing from existing state or federal grace-period laws. (Sotomayor made a related point during Unikowsky’s argument, noting that Congress considered and evidently rejected grace-period language proposed by the American Law Institute.) AliKhan responded gamely, insisting, for instance, that only the grace-period interpretation meaningfully implements Congress’ decision to defer to longer state tolling periods.

Seeking to overcome the textual infirmities of the grace-period approach, AliKhan invoked federalism values and constitutional avoidance as justifications for resolving any uncertainty in favor of the city’s reading. She emphasized that states have a sovereign interest in deciding when claims should and should not be litigated in their courts and that the suspension approach needlessly hits “a federal pause button.” The chief justice weighed in approvingly, agreeing that constitutional concerns arise when the federal government intrudes on the prerogative of states to manage their courts. Kagan, however, reacted more skeptically, noting that in Jinks, the Supreme Court has already upheld Congress’ constitutional authority to enact Section 1367(d).

Ultimately, the justices appear to be weighing two questions: how definitively does the text of Section 1367(d) favor the suspension approach, and how troubling are the implications of that approach. Several of the justices seem to view the text as clear, and they expressed no major reservations about endorsing suspension. Several others appear more concerned that the suspension approach excessively interferes with state control of state courts, but it remains to be seen whether they find enough textual wiggle room to adopt the city’s narrower grace-period approach.