Raygor v. Regents of the University of Minnesota - Oral Argument

Argument of Howard L. Bolter

Chief Justice Rehnquist: Mr. Bolter.

Mr. Bolter: Mr. Chief Justice, and may it please the Court: Section 1367 is a constitutional and sensible response by Congress to the serious procedural problems that were facing the Federal courts prior to 1990.

Those procedural problems arose due to State claims that were pending in the Federal courts at that time under this Court's, what was then called, pendent jurisdiction and is now called supplemental jurisdiction.

The problem specifically was what happens to those State claims that are pending in Federal court when the expiration of the statute of limitations on those claims occurs.

The courts were faced with a dilemma at that point, do they dismiss these claims and risk having them not be refiled in the State court or do they retain those... the supplemental jurisdiction over those claims and decide issues that might be better suited for the State courts when they don't... when the Federal court no longer wants to exercise that jurisdiction.

Justice Scalia: What... what's wrong with, as some courts did, conditioning dismissal upon... upon the plaintiff's... upon the defendant's agreement to... to waive the statute?

Mr. Bolter: The problem with that solution, Justice Scalia, is that there is no guarantee that there would be an agreement to waiver.

The defendant is... it's up to the defendant to agree to that waiver and to say that they will... they will not bring up that statute of limitations defense in State court.

Justice Scalia: Right, and if he doesn't waive, then... then you proceed in Federal court because it's just not... not a proper... proper basis for dismissing it.

What's... what's the matter with that solution?

Mr. Bolter: In that... in that situation, it might work.

There might be supplemental jurisdiction and the plaintiffs will not lose their claims.

However, that is just one court's potential solution.

There were a number of solutions that were being attempted at the time with varying effectiveness.

It didn't guarantee, across the board, that plaintiffs would be able to bring those State claims in Federal court and be assured that they would be... that they wouldn't be forfeited if the statute of limitations ran out.

One... one possible solution to the problem doesn't make 1367 unconstitutional.

1367 was a... was a general response to a general problem that was occurring below.

Chief Justice Rehnquist: How about the Solicitor General's suggestion that we construe the statute so as not to apply to nonconsenting... actions against nonconsenting States?

Mr. Bolter: To do that, the Court needs to address the threshold question of whether the statute abrogates in... in the first place, whether tolling is an abrogation of the State's immunity, and we contend that it is not.

Chief Justice Rehnquist: Well, but the Solicitor General says, as I understand his brief, that we would avoid that constitutional question if we construed the statute in the manner that he asked us to construe it.

Mr. Bolter: If the... if that scenario was taken and... and the construction is... is construed not to apply to the States, there will be serious constitutional problems that will be created by that construction, particularly depriving the... the Federal litigants of their access to the Federal forum.

Chief Justice Rehnquist: Well, what constitutional provision do you say would be violated if we followed that suggestion?

Mr. Bolter: The right... the due process rights of a plaintiff to have their cause of action heard in a... in a certain forum, to make sure that they would have those claims heard.

Chief Justice Rehnquist: What case supports your position there?

What case from this Court?

Mr. Bolter: I don't know if there's a case that's... oh, I'm sorry.

I take that... that's the Logan case that... that shows that a... that a plaintiff has a right to have their... their cause of action heard.

Justice Ginsburg: But not to have a cause of action heard in Federal court against a State.

Mr. Bolter: That... that's correct, not to have... not to have it heard in... in the Federal court against the State, but to have it heard in some forum.

The way--

Justice Ginsburg: But suppose the State decided it wasn't going to waive its immunity.

As I understand it, in Minnesota, you could bring this claim within 45 days.

The State has waived its immunity for suit in its own court.

Mr. Bolter: --That's... that's right.

Justice Ginsburg: So... but it... you're not suggesting that it had to do that, otherwise there would be a due process violation.

If that were so, then the State doesn't have any immunity because due process would compel it to... to answer.

Mr. Bolter: What we are saying is that the due process violation would be if you construe the statute not to apply to the States, you don't have the protection of tolling a State claim against a State in Federal court.

And if a State asserts its constitutional defense of sovereign immunity, that claim could be barred, but be... in--

Justice Ginsburg: But it wouldn't have been if you had filed a protective action.

Suppose you had... with this uncertain question of Eleventh Amendment immunity from suit in Federal court, you could have, on the same day you filed in Federal court and took a chance on that, filed a protective action in Minnesota State court.

Mr. Bolter: --We... we could have filed a protective action, but the... that has... I think there are two parts to that... that answer.

First, we could have filed a protective action, but there's no guarantees that the State would have stayed that action.

It might have... it might have forced litigation on that matter, creating res judicata and claims preclusion issues in the Federal court.

It might have sought to dismiss it because of claims splitting.

And the next part of the question is that the... the Supreme Court of Minnesota said that this was a facially unconstitutional... section 1367--

Justice Ginsburg: But wouldn't it... it wouldn't have occasion to say that... as I understand it, when duplicative actions are brought, the second court, the one where you file second, generally although it's not compelled to do this, will say, okay, prior action pending.

We'll stay this case till the other one is finished.

Mr. Bolter: --They... they could do that, but the point is that it wasn't... there was no guarantee that they will.

They might also choose not to stay it and not to clog up their dockets and have... have cases affecting their statistics.

Justice Ginsburg: You have... you're using a lot of mights.

Do you have any... do we know how Minnesota State courts treat the prior action pending plea?

Do they dismiss or do they keep it?

Mr. Bolter: They... if the claim is filed in Minnesota on... they will not dismiss if it was clear that the Federal court would not have exercised jurisdiction over that Federal... over that State claim.

And in Minnesota, it was not clear at that time, and it's still not clear because the... the university and the States have this constitutional defense which they can assert or not assert.

It's at their discretion.

In fact, some of the cases that we've cited show that Minnesota, the university, has litigated cases, on the merits in Federal court, State and Federal claims.

So, the point there is that we didn't know that the court would not exercise jurisdiction over the State claims, and if we were to file with that knowledge in... in State court, they could have dismissed on claims splitting or claim preclusion ground... or claims splitting grounds because the Federal court might have exercised jurisdiction.

It was not clear.

Justice Scalia: It seems to me the principle you're arguing for... I'm just not sure what its... what its boundaries are.

The principle, as I take it, is when... when the Federal Government creates a Federal cause of action, any State law that impedes... and... and allows that Federal action to be brought in Federal court, any State law that impedes the bringing of that action in Federal court can be repealed by the Federal Government.

How does that apply, for example, to simple statutes of limitations?

Let's... let's assume you... you have a Federal statute of... of a year for certain... for a certain transaction or occurrence.

The State statute for the same transaction or occurrence and the State's cause of action is just 6 months.

Now, would you argue that because of the difficulty of claims splitting and so forth, the Federal Government can prescribe by statute that the State cause of action shall be extended to 12 months?

Mr. Bolter: No, that's not what we are saying.

Justice Scalia: Well, why not?

If you say no, then you acknowledge the principle that, you know, there are some problems that have no solution, and... and the mere fact that you're making the Federal cause of action more difficult has nothing to do with whether there's Federal power to... to solve that particular problem.

Mr. Bolter: The... the scenario that you just posed about the 6-month and the 1-year time limits... you could still file that State claim in Federal court within 6 months.

You have to comply with the... the State cause... the State statute of limitations.

It's just in a forum that maybe the State will ultimately object to.

Justice Scalia: Yes, but the Federal Government wants to give you 12 months in its courts.

That's... that's the policy that it's decided.

We want to give you 12 months, and here's a State which has a State cause of action.

It is... it is putting you to the choice.

You either forego the... the State cause of action or... or you... you file within 6 months.

Doesn't that impede, to some extent, what the Federal Congress wanted to happen?

Mr. Bolter: I think in your... in that hypothetical, it probably would impede, but that's not the situation that we have in front of us.

Justice Scalia: Oh, I understand it isn't, but... but I... but the principle you're arguing for, it seems to me, leads to that conclusion, that the Federal Government can... can reconfigure State causes of action willy-nilly so that they don't impede the bringing of Federal causes of action in Federal court as Congress wishes.

Mr. Bolter: What the... what the statute does here, if it's applied to a State, is it tolls the time limit.

It doesn't... it doesn't change the time limit for the... the statute of limitations.

If we were to file this claim on the 50th day, 1367(d) wouldn't apply.

Justice Kennedy: Well, I... I wonder about that.

My understanding is... correct me if I'm wrong, please... that the Federal statute gives you an extra 30 days.

Mr. Bolter: It gives you the... the tolling... the tolling provision runs for 30 days after the time after the dismissal.

Justice Kennedy: Well, and so if you... if... if as in this case, I think you file on the last day or the next-to-the-last day in the Federal court, then you're given an extra 30 days.

So, you do reconfigure the State statute, contrary to your suggestion.

And... and I have a significant problem with that.

It might be that the tolling provision is necessary in order to make the Federal courts operate and exercise their jurisdiction in an efficient manner, but this statute goes beyond that and gives a longer statute of limitations.

Mr. Bolter: Well, it gives a longer tolling--

Justice Kennedy: It does reconfigure the statute of limitations.

Mr. Bolter: --I would respectfully disagree that it reconfigures the... the statute of limitations because it's... the statute... the State statute has to be complied with in order for 1367 to... to be triggered.

It has to be filed within the appropriate time period.

And... and that meets the statute of limitations objectives that the State was seeking when it... when it created that 45-day period.

The fact that it's being tolled after it's been timely filed is not... that's... that's not a core interest that's protected by the State sovereign immunity.

Tolling a statute that has been complied with, in this case filing within that 45 days--

Justice Scalia: Well, it hasn't been complied with under State law.

If... if the State law acknowledged the filing in Federal court as... as satisfying the statute of limitations, you wouldn't be here.

The problem is the State law says you have to file the action in State court within the statute of limitations period, and we're not going to give you any grace period for a false start that you made in Federal court.

Mr. Bolter: --Well, the... the State statute is silent on tolling.

It's not a condition of... of the State's waiver of that 45-day period and--

Chief Justice Rehnquist: But the State court here found that the State district court did not abuse its discretion in saying there wouldn't be any tolling, did it not?

Mr. Bolter: --That's what... they found that there was no abuse of discretion, but that was... that... the State court's initial decision there was based on a... an erroneous interpretation of Pennhurst II when--

Chief Justice Rehnquist: Well, but that presumably is up to the Minnesota courts to decide when the... when the State statute is tolled.

Mr. Bolter: --They have the discretion to decide that, but it's our position that the tolling provision of 1367(d) can also toll that time period because it's not abrogating the State's sovereign immunity.

It's not--

Chief Justice Rehnquist: Well, but you know, you say it isn't tolling because it's... it doesn't really go to the length of the statute of limitations, one.

But it does, you know.

If you say the... if you want to say a statute of limitations is tolled for a year, obviously that extends the time that the State law would have allowed.

Mr. Bolter: --But it doesn't defeat the purpose of... of the statute of limitations and... and the need to file in a timely fashion with that State statute to begin with.

And I think that's what the... the State... the... if the State has a core interest in the statute of limitations, that's what it would be, is that claims are filed within that time period.

Now, whether it's filed in a... in a jurisdiction to which the State ultimately objects is... is another point.

Justice Scalia: That isn't self-evident.

I mean, if what you're saying is true, every State would automatically allow tolling when suit is filed in a Federal court within the State statute period.

If it were self-evidently true that the State policy is not at all offended by that, you wouldn't have a problem and you wouldn't be here because every State would say, well, it was filed in Federal court.

That's good enough for us.

But it isn't good enough for a lot of States.

And... and, you know, it's their policy we're talking about, and their policy is you must file in State court within the limitations period.

Justice Stevens: May I ask you a sort of preliminary question I'm kind of puzzled about?

What is the source of the Federal Government's power to enact the statute at all?

Mr. Bolter: Article III to control the lower Federal courts gives the... the Government the power to create these... these Federal practices and procedures, in this case, the... the way to address combined Federal and State claims, as well as its... its... the powers to protect individuals from losing their due process rights to have their claims heard and... and burdening the access to the Federal courts.

Justice Stevens: So, it's Article III you rely on.

Mr. Bolter: Yes, Article III and... and partly on the equal... equal protection for... to allow plaintiffs to have access to Federal courts and bring their Federal claims and their State claims if they... if they need to do that as well.

Justice Ginsburg: It would just... when Congress passed this, Congress I... I assume was just thinking it was regulating the procedure in Federal courts, that it was exercising that power to implement Article III.

And what you said about due process, I didn't see any sign of that in the history of 1367.

But you're not suggesting that before 1367, people were denied due process because there wasn't a tolling provision.

Mr. Bolter: In some circumstances, they were because of the claims... the combination of the claims splitting and claims preclusion laws in the State courts and States and the statute of limitations on those pendent claims if they were brought in Federal court could result in a denial of a forum for that State claim if... if a Federal claim was also asserted.

Chief Justice Rehnquist: Is there... is there any indication that Congress, when it amended 1367, relied on anything other than Article III?

Are you suggesting it relied on section 5 of the Fourteenth Amendment?

Mr. Bolter: I don't think it's... that it's explicit in the congressional--

Chief Justice Rehnquist: Well, is it implicit?

Mr. Bolter: --I think it's implicit in there that they're--

Chief Justice Rehnquist: Where do you find that?

Mr. Bolter: --Well, the protections that it... that it provides--

Chief Justice Rehnquist: I mean, I'm... I'm talking about what Congress thought, not what you think.

Mr. Bolter: --I... I'm not sure I understand your question, Mr. Chief Justice.

Chief Justice Rehnquist: Well, my question was, is there any reason to think that Congress, when it made this amendment, was relying on section 5 of the Fourteenth Amendment, in addition to Article III?

Mr. Bolter: Aside from nothing explicit, I don't... I don't know what Congress was thinking other than what I could speculate.

Justice Ginsburg: Well... well, don't we know that this came out of the Federal Courts Study Committee?

Mr. Bolter: Yes, it did come out of the Federal Courts Study Committee?

Justice Ginsburg: And so... and Congress took the suggestion of that Federal Courts Study Committee, and as far as I recall, in that report, they were talking about the authority of Congress to regulate the procedure in Federal courts.

Mr. Bolter: That's right.

I think that goes to the Article III, I guess I... if I'm not... if I'm misunderstanding Mr. Chief Justice.

Justice Kennedy: Suppose we were to conclude that this statute must rest upon Article III.

We... we reject your due process and equal protection suggestions.

What's the closest case that you have where we have sustained a power like this pursuant to Congress' authority to establish tribunals under Article III?

Mr. Bolter: I have to think about that for just a second.

Justice Kennedy: Is it Terrell/Taro v. Burt Construction Company where the State cannot condition the filing of articles of incorporation on a waiver of the right to go to Federal court?

It can't burden the right to go to Federal court?

Mr. Bolter: That... I think that is an example.

I think probably Nash is also an example.

Justice Kennedy: Although I think Terrell/Taro was probably a Commerce Clause case.

Mr. Bolter: I'm not sure, Justice Kennedy, if it was or not.

I think Nash, though, was also... I think Nash gets to your question as well.

Justice Kennedy: Which... which case?

Mr. Bolter: The Nash... the Nash--

Chief Justice Rehnquist: Florida Industrial Commission.

Mr. Bolter: --Nash v. Florida Industrial Commission.

Justice Kennedy: Nash.

Mr. Bolter: I... I couldn't hear Mr. Chief Justice.

But I think that case also talks about burdening the Federal rights in an NLRB case.

Justice Kennedy: Going back to the statute of limitations point, I... I should know this, but if I file a complaint in the Nevada State courts and the Nevada court said, this doesn't belong here, there's no jurisdiction, the cause of action arose exclusively in California, and it dismisses, and you then file in California, is there tolling as a general matter?

Mr. Bolter: In that situation with... with two States, I would say that unless it was within the time period of California, it would probably not be tolled in that situation.

Justice Kennedy: All right.

Well, that... that seems to me very similar to what we have here.

Mr. Bolter: Well, we have a filing in Federal court here with... with a statute that... that directly addresses the tolling--

Justice Kennedy: Well, but you're... you're... well, it does or it doesn't.

But you... you indicated earlier that the statute of limitations was not in any way extended because it was tolled by the filing.

But it is extended by this additional 30 days.

You basically have... what was it?

45... the 45 plus 30.

You have 75 days now, almost double.

Mr. Bolter: --Well, I think that the tolling provision is different.

I mean, it does give additional time, but it doesn't extend the time period that the State was open and exposed to liability.

It doesn't extend that 45-day period.

They were already notified of it.

They... they were put on notice.

They had the... they knew that they were going to be sued and it was brought in... within that 45-day period.

The fact that it was suspended during a time period where the State was in Federal court at its own... its own discretion, it would be... it would be harmful to the plaintiffs to have the State be able to use the delay in time that it's pending in Federal court to bar the claim from being brought after that in State court.

Justice Ginsburg: Mr. Bolter, what you said might be so if the only purpose of the statute of limitations were repose, being notified on time that you're subject to suit.

But there are certain statutes that have been called so-called built-in statute of limitations where the limitation is considered part and parcel of the right itself usually when it's in the very same statute, and that seems to be the kind of limitation that we have here.

We have a State that is giving up its sovereign immunity, but only on these terms.

So, why isn't this a built-in statute of limitations?

So, by necessity there would be harm when the State says it's the right... we condition the right on you bringing suit within 45 days.

Mr. Bolter: They didn't make, as a part of that condition, anything about tolling.

That's... that's I think the... the first point, and... and that's what this statute is doing, is tolling.

It's not changing that... that right, that built-in right that you talk about, to the 45-day period.

That... that still has to be complied with.

But this is talking about tolling, which is a different... it's a different animal here, but it doesn't extend that time limit, that... that built-in time limit simply by tolling.

It suspends it from running out but it doesn't extend it.

I couldn't have filed that claim 75 days after it was sued.

I had to file it within 45 days or else it would have been barred, and 1367 would not have attached.

Justice Souter: But I take it you're saying that whether you regard it as built in or whether you regard the policy as simply a policy of repose, Article III power or section 5 power is what it is, and... and it can accomplish what this statute wants to accomplish.

Mr. Bolter: Yes.

Justice Scalia: I don't know why you rely just on Article III or on section 5, which I think is pretty remote in this situation.

Why... why don't you rely on the underlying Federal statute?

There will always be some Federal power that justified the Federal cause of action which is the subject of this extension provision.

Let's assume it's a Commerce Clause cause of action.

Under the Commerce Clause, the Federal Government could have, if it wanted, eliminated the State cause of action entirely, couldn't... couldn't it?

It could have said, we... we preempt any State action in this field, and the whole State cause of action would be washed away.

If it can do that, why can't it do the lesser act of not washing away the State cause of action, but just saying, you know, if you bring suit in Federal court on this Commerce Clause cause of action, you get another 30 days or whatever, 45 days, whatever it is?

Mr. Bolter: Well, it doesn't... it doesn't--

Justice Scalia: Wouldn't that work?

That... that makes me feel a lot more comfortable than just relying on Article III.

Mr. Bolter: --Well, I don't think that it washes--

Justice Scalia: I'm trying to help you.

[Laughter]

Mr. Bolter: --I don't know that I understand.

Are you saying that they had power under the Commerce... if they had power under the Commerce Clause, could they do this?

Justice Scalia: This statute itself piggy-backs on whatever substantive Federal statute exists out there, you know, whether it's under the Commerce Clause or under any other Federal power.

And... and that Federal power would allow the total elimination of the cause of... of the State cause of action.

Why... why is it unreasonable to allow a mere extension of the... of the State limitations on that State cause of action?

Mr. Bolter: Well, I guess I don't disagree that it's not unreasonable to toll this... these statutes of limitations.

Chief Justice Rehnquist: Do you know of any case in which this Court has held that Congress, when passing a statute of its own, could totally forbid a State to enact a similar statute?

Mr. Bolter: I'm not aware of a case like that, Your Honor.

Chief Justice Rehnquist: Neither am I.

Justice Ginsburg: Mr. Bolter, in any event, that wouldn't take you very far because so often these pendent State claims are garden variety State tort law, contract claims, are they not?

I mean, there's the big Federal claim, and then you latch onto that the State common law claims.

So, the State common law claims could arise out of the same transaction and occurrence, depend on the same nucleus of facts, and yet not be just a State counterpart of the Federal statute.

Don't you... don't you have that in... in civil rights cases?

Let's say, bring a 1983 claim against a police officer and then you latch onto it State common law claims for assault and battery?

Mr. Bolter: Yes, and... and that's what we have done in this case, or that's what we... that's what this... and that's what this statute protects against, losing those claims.

I... I'm not sure if I understood your question, Justice Ginsburg, about can you do that in Federal court, I mean, latch onto those Federal claims?

Yes.

I mean, that... that is what supplemental jurisdiction is about in this situation.

So, I don't think that that's... that's appropriate to do that.

And... and it goes back to giving the State a choice of whether it wants to be there or not by exercising its constitutional defense of sovereign immunity.

I mean, I think the key... one of the key things here is that this... that the tolling does not abrogate the State's sovereign immunity because it's in a jurisdiction that it wants to be in at all times.

The choice is its own.

And the sovereign immunity core principles described by this Court in its jurisprudence have been whether and where a State can be sued, and it doesn't infringe on those core interests.

Tolling has never been identified as a core interest of... of sovereign--

Justice Scalia: Just whether and where and not when.

Right?

So, the Federal Government could... could override State statute of limitations on sovereign immunity cases no matter what because it's not really part of sovereign immunity.

Mr. Bolter: --I don't--

Justice Scalia: The State says, I'm willing to be sued for 1 year, and you say the Federal Government doesn't have to observe that 1 year.

It can say, well, you know, it's 2 years instead.

Mr. Bolter: --No.

I think that the... that 1 year has to be respected, but this is about tolling.

It's not about changing a statute of limitations.

This is about tolling the time period for it to run out.

If there are no further questions at this time, I'd like to reserve the remainder for rebuttal.

Argument of Mark B. Rotenberg

Chief Justice Rehnquist: Very well, Mr. Bolter.

Mr. Rotenberg, we'll hear from you.

Mr. Rotenberg: Mr. Chief Justice, and may it please the Court: Your Honors, it's critical to focus on the fundamental issue of federalism presented in this case; namely, is it Congress or the State that has the power to decide when that State can be sued by its own citizens in its own courts?

Justice Breyer: So, in your view, the Soldiers and Sailors Relief Act... all of the soldiers in Afghanistan, when they come back and they find that their statute of limitations has run out, Congress does not have the power to extend the statute.

Is that right--

Mr. Rotenberg: Your Honor--

Justice Breyer: --in your opinion?

Mr. Rotenberg: --Under--

Justice Breyer: I mean, there's presently a statute that says when they come back, people who are in the armed forces, they will discover that the statute of limitations in the States has been extended for 6 months.

In your... or however long necessary.

In your opinion, that's unconstitutional.

Mr. Rotenberg: --Your Honor, the... the logic... it may be unconstitutional is the direct answer to your question.

The logic--

Justice Breyer: All right.

Now, what about... what about tort reform?

Suppose in the tort reform statutes that pass, there is a provision that somehow in there is favorable to a plaintiff.

That could happen.

And if that does happen, then the State doesn't want to follow it, unconstitutional to apply it.

Mr. Rotenberg: --Justice Breyer, the... the thrust of Alden against Maine is that Congress does not have the power under Article I to force a State to submit to a private suit for damages in its own courts.

Justice Breyer: All right.

Is it constitutional for Congress to pass a copyright law or a... any of these tort statutes that are federalized and say that the States cannot pass a statute that gives a cause of action in tort that is different?

Mr. Rotenberg: Your Honor, the answer to that question would depend on Federal preemption principles.

Justice Breyer: Correct.

Mr. Rotenberg: Under the Commerce Clause--

Justice Breyer: Now, they... they can preempt.

Fine.

Then if they can do that, why can't they shape the cause of action in the State so that it corresponds with Federal law by, for example, extending a little bit or not extending too much the statute of limitations?

Mr. Rotenberg: --The reason they cannot do... the Congress cannot do that, Justice Breyer, is because this statute, 1367(d), represents a blanket attempt by Congress to extend statutes of limitations without regard to the existence of an independent power in Article I, such as the war power which may suffice to protect--

Justice Scalia: That... that power will always exist in the Federal cause of action that has been brought in Federal court.

Mr. Rotenberg: --It will exist, Your... Your Honor, in... in the--

Justice Scalia: In every case to which this... this statute applies, there will be involved a Federal power under Article I.

Mr. Rotenberg: --Well, not in this case, Your Honor, and this case is a perfect example of the... of the situation.

This... this Court held that, in fact, there was no power under Article I to hail the State into Federal court in an age case.

So... and... and petitioners here--

Justice Souter: No, but that's... essentially you're going back to the Eleventh Amendment.

I mean, your... I understand your Eleventh Amendment argument, but you're trying to overlay an Article I argument on that, and I think that's where we're having... having our difficulty.

But as I understand it, your ultimate answer to the difficulty is the Eleventh Amendment.

Mr. Rotenberg: --We... Justice Souter, we have two arguments, yes.

The... the essential point of... of Alden relates to causes of action against the State sovereign, and this Court in Alden has established a categorical rule that a State's power to condition its waiver of immunity is... is not subject to the Article I power of Congress to amend.

In Alden, this Court held that, to the extent Maine chose to consent to certain types of suits, while maintaining immunity in other types of suits, it has done no more than exercise its privilege of sovereignty concomitant to its constitutional immunity from suit.

So, that is the first and most important point here.

With regard to the... the plenary authority of Congress to adopt a sweeping statute of limitations alteration in... in the States that applies to an unlimited type of claim, you have to look at whether there was an express intent to abrogate and--

Justice Stevens: May I interrupt you?

Mr. Rotenberg: --and that would take you into a... a section 5, Fourteenth Amendment type analysis.

And--

Justice Stevens: May I ask you this question as a preliminary matter?

Putting the Eleventh Amendment to... to one side just for a moment, because I do understand your position there, assume this was a suit against a public utility and the... and they... Minnesota provided an especially short statute of limitations for that public utility.

Would... would you think the... the Federal statute would be unconstitutional as applied in such a case, or would it be valid?

Mr. Rotenberg: --The... the statute is unconstitutional if the Court needs to address the question of legislative power, Justice Stevens, because there is no case upholding a congressional power to enact a sweeping expansion of statute of limitations--

Justice Stevens: There's no case upholding it, no case striking it down.

But... but in any event, you think the statute would be unconstitutional even if you didn't have a State defendant.

Mr. Rotenberg: --That's right, Your Honor.

Chief Justice Rehnquist: Well, that... that goes quite far.

What... what is your reasoning there?

Mr. Rotenberg: The reasoning there, Mr. Chief Justice, is simply that since the Founding Convention, it's been clear that the powers of Congress are defined and limited, and the residual legislative power does not rest with Congress.

It rests with the States under the Tenth Amendment under this Court's decisions in Marbury and the... as recently as United States against Morrison.

The... the point of the matter is, Your Honors, that my able petitioners' counsel here has... has failed to suggest any case law that supports the enactment of a... of a change in the State statutes of limitations that's unhinged from a particular exercise of power--

Chief Justice Rehnquist: But... but Article III is certainly a particular power.

Mr. Rotenberg: --Yes, Your Honor.

But the tribunal--

Justice Ginsburg: Mr. Rotenberg, did... did the Minnesota Supreme Court go that far?

I thought that their decision as to the unconstitutionality of 1367 related only to cases in which the State was the defendant.

Mr. Rotenberg: --Justice--

Justice Ginsburg: And to the extent that you're asking us to consider this broader theory, you're asking us to take that up... to go beyond where the Minnesota Supreme Court left off.

Mr. Rotenberg: --Yes, Justice Ginsburg, that's correct.

The Minnesota Supreme Court did not hold that the statute was unconstitutional as applied in all--

Justice O'Connor: And your position... your position would, as Justice Breyer suggested, mean that the Soldiers and Sailors Civil Relief Act is invalid, insofar as it tolls State statute of limitations as well.

Justice Kennedy: In actions against the State.

Justice O'Connor: This would... this... this would be a big surprise, I think--

Mr. Rotenberg: --Justice O'Connor--

Justice O'Connor: --to members of the armed forces.

Mr. Rotenberg: --Justice O'Connor, the... the--

Justice O'Connor: Why... why do you want to go that far?

Why don't you stick with what the lower courts did and talk about the Eleventh Amendment?

What... what possible advantage is it to you to make this sweeping argument you're making?

Mr. Rotenberg: --Justice O'Connor, it is certainly sufficient for this Court to address only the Alden principle, as Justice Kennedy just mentioned, and restrict the holding to a State sovereign--

Justice O'Connor: And in that regard, what's the matter with the Solicitor General's approach that says the statute was never intended to cover nonconsenting States?

Don't interpret as applying.

What's the matter with that?

Mr. Rotenberg: --Justice O'Connor, we agree with the Solicitor General that the statute can and, indeed, should be so construed.

Justice Breyer: I guess then the next case... then the next case we'll have is where the soldiers and sailors come back and they would like to sue the State.

Maybe it's a pension.

Maybe it's a tort.

Maybe it's a contract.

There can be many, many things in States that... where the residents have a cause of action, and I guess even your minimal position would make it unconstitutional for them to do so.

Mr. Rotenberg: Justice Breyer, this Court has not addressed the intersection between its holding in Alden against Maine, which establishes a categorical rule that Congress is disempowered from forcing a State to defend itself against its own citizens in its own State courts, and the... the war power.

That case has not been presented, and I would suggest to Your Honors--

Justice Souter: Well, the war power is... is an Article I power.

I mean, a minute ago I thought you were making a... a flat Article I argument.

Mr. Rotenberg: --Yes, Justice Souter.

The... my... my understanding of this Court's jurisprudence in this area... and Alden isn't the only case that stands for this proposition, of course... is that Congress, acting within its Article I power, is... has no authority to abrogate sovereign immunity.

Now, it hasn't... Your Honors have not specifically faced what I would submit is a very challenging issue, as suggested by Justice O'Connor's question.

Do we really mean each and every exercise of Article I power, even and including the war power to protect sailors abroad?

Justice Kennedy: Well, what would... what would possibly be the ground for distinguishing.

The State has sovereign immunity or it doesn't.

Mr. Rotenberg: Justice Kennedy, I agree, and I think that the practical answer in our federalism is to allow the States to exercise good judgment with respect to their tolling provisions.

It... it strains the imagination--

Justice Kennedy: Precisely.

They can waive if they want to.

Mr. Rotenberg: --Exactly.

Justice Breyer: Well, that's what bothered me.

This may just be a misprint or something, but quite clearly the State of Minnesota has the power to say that our consent extends to this tolling provision, doesn't it?

It could.

It could come out the other way if it wants to.

And, indeed, they say that the equitable tolling applies to their statute, don't they?

All right.

Now, I read their opinion.

I've read this six times.

Not six, but only two.

Let me not exaggerate.

[Laughter]

But... but when they get to the--

Justice Scalia: --It seemed like six.

Right?

[Laughter]

Justice Breyer: When... when they get to the point, this very point, it says, however, we read Alden to require the university's waiver of immunity be limited to the... be limited to the parameters set forth in the statute; i.e., 45 days.

Well, Alden has nothing to do with that.

But they seem to think... and after all, they did say that this statute says 45 days, but it doesn't mean 45 days in respect to equitable tolling.

But they seem to think that our case Alden required them to limit it to the 45 days, which of course it doesn't.

So, they seem to be under a misapprehension in that respect, and I would like you to address that, what we should do about that.

Mr. Rotenberg: Justice Breyer, I agree with you that Alden does not compel a particular interpretation of State law.

That's certainly true.

It is also true that the Minnesota Supreme Court unanimously determined that the 45-day limitation on its waiver of sovereign immunity is... is part and parcel of the statute, as Justice Ginsburg previously mentioned, and is an aspect of its... of its sovereign immunity and in... in addition said that the equitable tolling principle could be applied.

But it's important to recall that the Minnesota courts apply the equitable tolling principles in an extremely conservative fashion.

Justice Breyer: Yes, but my question, of course, is, what do we do about that sentence in the opinion which says, we read Alden to require that the waiver of immunity be limited to 45 days?

Mr. Rotenberg: Well--

Justice Breyer: That's... that's... if they had said exactly what you just said, I wouldn't have my question.

Mr. Rotenberg: --Justice Breyer, this Court need not affirm every sentence of the Minnesota Supreme Court's decision.

It only need affirm the judgment, and the judgment can be affirmed simply by reference to the fact, the constitutional fact, that Alden proscribes congressional alterations of... of State waivers of sovereign immunity.

Justice Ginsburg: Mr. Rotenberg, because sovereign immunity is kind of a peculiar objection... that is, the State... it's up to the State to waive it or not.

It's not like a case where the Federal court wouldn't have subject matter jurisdiction.

Shouldn't, at least for the period that the State stood silent, which I understand was about 9 months, in Federal court... at least for that period, shouldn't the State be treated as having been legitimately before the Federal court not complaining about it?

So, for those 9 months, at least, the limitation ought to be tolled.

Mr. Rotenberg: No, Your Honor.

It... it isn't true that Minnesota stood silent for 9 months.

The university asserted its sovereign immunity defense at the earliest opportunity, namely in its answer, and... and never in any way suggested a waiver of such a... of such a defense.

This Court has held repeatedly that waivers of sovereign immunity by the States is not to be inferred and not to be implied.

Justice Ginsburg: What was going on?

I understand, at least from the dates, that this was raised 9 months after the litigation commenced.

What was going on?

Usually an answer is in... how many days?

Mr. Rotenberg: 20 days, Your Honor.

Justice Ginsburg: Yes.

Mr. Rotenberg: And we filed our answer asserting sovereign immunity within that time frame.

There's nothing the university could have done to save their claim.

The... they filed in Federal court merely 48 hours before the statute of limitations would... the 45-day rule would have expired even under their understanding, meaning that a filing in the wrong court suffices to be a filing in the correct court.

So, there's nothing the university did to delay whatsoever.

Moreover, we filed a dispositive motion at... in a timely way, consistent with the normal course of litigation in this case.

Most Federal trial courts prefer that dispositive motions not be filed seriatim.

And we... we noticed the motion, and there was a scheduling order, which plaintiff knew about, in the spring of 1997, and we filed the dispositive motion asserting our sovereign immunity in June of '97.

And even if you would say that... that somehow the petitioners here were not fully aware, as they should have been, that the university was asserting its sovereign immunity from the get-go, by June 3, they had a motion, a dispositive motion, and the filing in the State forum still exceeded the 45 days.

Justice Kennedy: Well, I... I suppose under the rule you're suggesting that we adopt the State could... let's assume that the claim is filed in the Federal court on the fifth day, and there's 40 days more left.

I suppose the State could just sit back and wait for 60 days before it moves to dismiss to allow the claim to go stale, under your submission.

Mr. Rotenberg: Justice Kennedy, that's possible but that was not what happened here, number one, and number--

Justice Kennedy: Well, it not only is possible.

It's the necessary concomitant... necessary sequence from the rule you... you propose.

Mr. Rotenberg: --Your Honor--

Justice Kennedy: It's not possible, it's necessary.

That's your rule.

Mr. Rotenberg: --it isn't... it isn't my rule alone, Your Honor.

Pennhurst explicitly--

Justice Kennedy: It's the result you want us to adopt.

Mr. Rotenberg: --Yes, it is, Your Honor.

But Pennhurst specifically suggests... yes.

Excuse me.

Pennhurst explicitly says that the expedient of filing the claim in the State court will avoid any danger of this kind occurring.

And... and Pennhurst stands clearly for the proposition that a filing of the State claim, a protective claim, which petitioners' counsel here acknowledged would solve the problem, and filing the Federal claim in the Federal forum is a constitutionally appropriate expedient.

Any contrary indication brings into question the... the opinion of this Court in... in Pennhurst by suggesting that filing concomitantly in the State and Federal forums is somehow a due process problem.

Let me conclude with an... a closing observation about the due process issue.

Petitioners have not cited a single case, not a single case, holding that the State's handling of pendent claims, in the absence of section 1367, somehow violated due process.

And equally important, Your Honors, petitioners do not seriously claim that 1367(d) is a valid exercise of Congress' power under section 5 of the Fourteenth Amendment to address any supposed due process problems.

The record is simply bare.

Moreover, due process cannot be the basis of any supposed abrogation here because the first element of abrogating the State's sovereign immunity, using section 5 of the Fourteenth Amendment, is an explicit statement of Congress.

There is no such explicit statement of Congress here.

In fact, the record is silent as to any due process claim either in the halls of Congress or in the... in the case law, at least as cited or referred to by... by petitioners.

And most importantly, Your Honors, and in conclusion, whether there might conceivably be an unfairness in some hypothetical State situation, this question of unfairness does not trump the Alden principle, that Congress cannot, by an observation of unfairness falling short of a due process issue, force a State to submit to suit against itself in its own courts.

Justice Scalia: I suppose unfairness is what sovereign immunity is all about, isn't it?

Mr. Rotenberg: It may be seen that way by some plaintiffs, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Rotenberg.

Mr. Rotenberg: Thank you.

Argument of Paul D. Clement

Chief Justice Rehnquist: Mr. Clement, we'll hear from you.

Mr. Clement: Thank you, Mr. Chief Justice, and may it please the Court: When this Court confronts a general grant of jurisdiction, like 1367(a), it routinely infers that the statute does not apply to nonconsenting States.

Such a construction avoids difficult... upsetting the balance between Federal and State powers.

For similar reasons, this Court should construe section 1367(d)'s tolling provision not to apply to nonconsenting States.

That reading avoids the difficult sovereign immunity questions posed by the application of a Federal statute to extend the State statute of limitations against a nonconsenting State in State court.

Justice Souter: You... basically you're saying clear statement.

Is that... is that nub of your point?

Mr. Clement: The nub of the point--

Justice Souter: The clear statement rule.

Mr. Clement: --is this Court should apply a clear statement rule to this statute, the supplemental jurisdiction statute, and since there's no indication in the text or legislative history that Congress had any contemplation that this would apply to nonconsenting States, this Court should construe the provision as not applying to nonconsenting States.

Justice Souter: Do you... do you agree that in the absence of a clear statement rule, there is no ambiguity here that... that would open the door to our giving this kind of a construction?

Mr. Clement: There is... there is enough ambiguity in the statute, if the Court wanted to, to reach the second argument that we offer in our brief, but I would suggest that the first argument we offer in the brief, which you could call the clear statement argument, is a more narrowly tailored and focused answer to the constitutional issues that are raised by applying the statute to nonconsenting States.

Justice Souter: Well, you've only got 10 minutes, and I'll leave it to you to whether you want to get into it.

I... I have trouble with the ambiguity argument.

I understand your clear statement argument.

I have trouble with the ambiguity.

Mr. Clement: Well, if I could, I would focus on the clear statement argument because I think it does very narrowly avoid the constitutional issue that's raised.

Justice Scalia: Now, to... to apply the clear statement argument, do we not have to at least decide that it does constitute an elimination of State sovereign immunity to require the tolling of... of the action against the State?

Mr. Clement: I don't think so.

I think this Court only needs to decide that it would raise grave constitutional doubts before it would need to apply the... the clear statement rule because, although in some contexts, in the abrogation context, for example, a clear statement rule assumes that... that the Congress can't constitutionally do something, in other contexts as Gregory v. Ashcroft, Will against the Michigan Department of... of State... in those cases, this Court has applied clear statement principles even though they don't assume the answer to the constitutional question.

And that, of course, is consistent with the way this Court approaches matter as a general matter and its preference to avoid constitutional questions.

The... the Court, for example, just last term in... in Vermont against United States ex rel. Stevens, applied similar principles of statutory construction to avoid directly addressing the Eleventh Amendment--

Justice Scalia: It's fine when you're dealing with an ambiguous statute.

Sure, just the mere presence of a constitutional doubt will cause you to resolve the ambiguity in such a fashion that it doesn't raise a constitutional principle so you have sort of a clear statement rule, unless it's a clear statement where there's a... but those are ambiguity cases.

You're... you're purporting to forego reliance upon ambiguity and to say even assuming that the statute is clear, you should not interpret it to apply to the States.

And now, do you have any case not involving ambiguity, where we have applied the clear statement rule without first finding that it is clearly an abrogation of State sovereign immunity?

Mr. Clement: --Well, I think, for example, in the Stevens case, this Court interpreted the term person not to include the State.

What effectively we're asking the Court to do here is interpret the term, any claim, in section 1367(d) to say any claim except one against a nonconsenting State.

Chief Justice Rehnquist: Well, I think in Atascadero we interpreted the word person so that it did not include the State, even though you could say person means a lot.

Mr. Clement: No.

That's exactly right.

And in Will against Michigan where the Court had already held that 1983 did not implicate Eleventh Amendment issues, this Court nonetheless held that in State courts, the term person in 1983 does not apply to... to States or to State officers acting in their official capacities.

And I think all of those cases and the... the Court's decision in Gregory against Ashcroft and in Will all stand for the proposition that this Court can apply a clear statement type principle to avoid a constitutional--

Justice O'Connor: How... how do you respond to the Soldiers and Sailors Civil Relief Act as applied to States in tolling causes of action against the State?

Mr. Clement: --Well, I... I think that... that in order to maintain consistency with our position in this case, we would have to ask this Court to apply a clear statement rule in that case, and the current version of the statute would probably not apply to States under that... under that theory.

Justice Breyer: So, has that been happening?

I mean, is it the case that the armed forces members have been suing States or not under the act?

Mr. Clement: We haven't seen that the... that the issue of sovereign immunity arising in those contexts, and it very well... well--

Justice Breyer: And it could be just that--

Mr. Clement: --It very well may be, as counsel for the University of Minnesota suggested, that States will have the good sense in those instances to waive their sovereign immunity defense.

I mean, the same principles that are going to motivate the Federal Government to pass the Soldiers and Sailors Civil Relief Act are going to motivate State governments to waive their sovereign immunity defenses in those claims.

Now, it seems to me that... two points I'd like to make.

First of all, it's worth focusing on the fact that even before 1367(d), the informal Federal court practices for dealing with potentially untimely State claims did not apply to nonconsenting States.

Justice Scalia, you raised the... the problem of conditioning a dismissal on a withdraw... of statute of limitations defenses.

But, of course, under Pennhurst II, a State has an absolute right to insist that the pendent claims against it be dismissed.

So, in that context, the Federal court would not be able to condition the dismissal on a waiver of a statute of limitations defense, nor would it be able to retain jurisdiction over the claim.

So, it stands to reason that 1367(d) should no more apply to cases against nonconsenting States than the Federal court practices it replaced.

Lastly, I would emphasize that this interpretation of section 1367(d) does not place plaintiffs in an untenable position or in an unconstitutional bind.

Plaintiffs, in cases where the State objects to Federal court jurisdiction as a blanket matter, have the same rights that they would have under Pennhurst II.

They can file both claims in State court, the Federal and the State, which seems a complete answer to any due process objections, or they can file parallel proceedings.

Even if the State makes a decision whether to consent on a case by cases, as Minnesota appears to do, the State... the plaintiff can still attempt to get consent in the first instance, and if it's not, it can make a protective filing along the lines that Justice Ginsburg suggested.

In the end, it seems that plaintiffs lack any case law to support their due process arguments.

I think that respondent, in fairness, lacks any case law to support its... its Article I legislative power argument.

There's really no need for this Court to make any significant case law in order to decide this case if it simply applies the clear statement test we suggest in our brief.

If there's no other questions, I'll submit.

Rebuttal of Howard L. Bolter

Chief Justice Rehnquist: --Thank you, Mr. Clement.

Mr. Bolter, you have 2 minutes remaining.

Mr. Bolter: Thank you, Mr. Chief Justice.

I'd like to address something that was brought up on... again in questioning the university about being a nonconsenting State.

It is... their arguments... the... the university and the Solicitor General's arguments rely on the fact that they were a nonconsenting State throughout this whole procedure.

And that's not an accurate characterization of what went on here.

When they were sued in Federal court, they were not a nonconsenting State until 9 months later when they brought that motion to dismiss.

Justice Ginsburg: But they said they put it in their answer within 20 days.

Mr. Bolter: They did do that.

Justice Ginsburg: And I think Mr. Rotenberg was quite right that the whole impulse of the Federal rules is you bring all of your motions at once and not seriatim.

Mr. Bolter: They--

Justice Ginsburg: But they... if they raised that... that Eleventh Amendment in their answer within the time allotted, I don't think that you can say that it was a 9-month thing that they--

Mr. Bolter: --Raising the defense in the answer was just like raising any other defense in that answer.

They had to assert it or else they would risk a waiver argument later on.

All that did was preserve their right to bring the... the motion 9 months later.

Justice Souter: --Yes, but in preserving that right, it... it certainly does not put them in the position of being a consenting State.

Mr. Bolter: Well, they were not a nonconsenting State.

Justice Souter: Look, what it boils down to is they hadn't filed the motion to dismiss yet.

That's what we're arguing about, isn't it?

Mr. Bolter: Yes, they had not filed the motion and until that motion was filed, the court can't rule on it.

The court can't... is not going to dismiss the claim, and there will be supplemental jurisdiction over all the claims that are--

Justice Souter: Yes, but by the same token, you know by the answer that they are not consenting to jurisdiction.

Mr. Bolter: --All we knew by the answer is that they were asserting an affirmative defense, just like they asserted a statute of limitations defense or laches or waiver.

And none of those can be ruled upon by the court until they are affirmatively brought before them to rule on.

They might have just decided not to do anything with it until the matter was tried on its merits, and they have done that in another case, the Eldeeb case, which they received summary judgment on the merits of both State and Federal claims.

Justice Ginsburg: Didn't you know also that you were at risk of an interpretation of 1367?

Justice Souter suggested that there is no ambiguity, but at least there's a respectable authority for saying there is and that the tolling of 1367(d) is limited to cases covered by 1367(c) and would not take in sovereign immunity.

Mr. Bolter: We did not anticipate that that could be a construction of... of 1367... of 1367(d), otherwise we might have reevaluated whether or not to bring it.

But that wasn't... there was nothing to suggest that that was the status of the case law--

Chief Justice Rehnquist: Thank you, Mr. Bolter.

The case is submitted.