Transcript

SUSAN JINKS, Petitioner v. RICHLAND COUNTY, SOUTH CAROLINA.

No. 02-258

March 5, 2003, Wednesday, Washington, D.C.

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:27 a.m.

PROCEEDINGS

(11:27 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 02-258, Susan Jinks v. Richland County.

Mr. Peck.

ORAL ARGUMENT OF ROBERT S. PECK ON BEHALF OF THE PETITIONER

ROBERT S PECK: Mr. Chief Justice, and may it please the Court.

In enacting section 1367, Congress took up this Court's invitation in Finley to manage the boundaries of supplemental jurisdiction.

It had two goals in doing so.

It sought to provide a Federal forum for the plaintiffs that so chose to use it, and for... for reasons of respect for the interests of comity and federalism, it provided a mechanism by which those cases may be returned to State court.

They knew that there was a dilemma, a dilemma caused by the operation of statutes of limitations, and so they sought to find and found a simple, practical, workable solution that traveled down a well-trod path.

It's a path that was traveled down by the Soldier and Sailors' Relief Act, a act that also tolls State statutes of limitations even when exigent circumstances do not exist.

And in the case in 1993 holding that, Conroy, this Court found that it was applicable in that instance to a defendant who was a town.

It also traveled down that road in section 108 of the Bankruptcy Act.

This too provides that kind of 30-day window after dismissal of the automatic stay or lifting of the automatic stay for a plaintiff to file an action which is otherwise purely a State matter in State court.

This Court found in Stewart v. Kahn that there is no federalism bar to congressional authority as long as that authority exists someplace in the Constitution.

Throughout its history, pursuant to Article I, which has a cognate provision duplicative of the authority it derives also from Article III, Congress has used its jurisdiction-setting authority as a traffic cop over the area of concurrent State and Federal jurisdiction.

It has done so almost from the beginning in the Anti-Injunction Act, the removal statute, and has always found this to be a necessary incident of maintaining a dual-court system.

JUSTICE STEVENS: Well, the Anti-Injunction Act just applies to Federal courts, doesn't it?

ROBERT S PECK: The... it gives Federal courts the authority, though, to stay a State action when it interferes with the jurisdiction of the Federal court.

CHIEF JUSTICE REHNQUIST: It's an... that... that's an exception to the Anti-Injunction Act.

ROBERT S PECK: That's an exception contained in the Anti-Injunction Act, and another exception is when an act of Congress so provides.

The choice of tolling did not attempt to give longer life in State court than it would have enjoyed in Federal court.

It did not eliminate defenses that were available in Federal court, have the matter remain there.

It did not change the State's policy on waiver of municipal liability or alter its statute of limitations.

It simply said that the case, as it stood in Federal court, is now available to be heard in State court.

The State is free to change both its waiver of immunity, its statute of limitations, and Congress accepts those changes regardless of the application of the supplemental jurisdiction statute.

Once that jurisdiction attaches, once the Federal court has authority to hear the State action, then even after the Federal... Federal claim has fallen away, the court still has the jurisdiction to hear what otherwise would have been a purely State claim.

This is unusual in a diversity case.

When complete diversity is broken, the jurisdiction ends.

But here no one, not the Supreme Court of South Carolina, not the respondents, not the amici, questioned Congress' authority to say that this remains a Federal matter because a Federal interest has attached because the matter has now been heard.

JUSTICE GINSBURG: I didn't understand it that way, but South Carolina said, Federal court, you want to take this and deal with this stale claim?

That's all right with us.

It's one of the ironies of the case that the State's position is the Federal court can have it if you keep it.

The only thing they can't do is give it back to us when we don't want it because that would be commandeering the use of our courts.

South Carolina's position is the Federal court can keep our State claim in Federal court.

Indeed, it must if it wants the claim to remain alive.

ROBERT S PECK: That... that is correct, and even at this late date, rule 60(b) would enable a plaintiff like Susan Jinks to seek to reopen that Federal case, to... to reconsider its judgment and allow this case to still live if... if the tolling provision is ineffective.

So here what we're saying is that there's a continuing Federal interest in this matter.

There's... there's been a Federal attachment to what otherwise would have been a purely State matter.

In a removal situation, for example, South Carolina could not refuse a remand and we contend that that authority which is contained in the removal statute is the same kind of authority that Congress is exercising here because what Congress has effectively done is define the legal effect of the appearance of this matter in Federal court and the Federal disposition of it.

And the State courts of South Carolina or any other State is not equipped, it's not authorized to refuse that definition because Congress is the supreme sovereign of Federal law.

So--

JUSTICE SOUTER: We... we know what Congress has... has... has defined.

Why is it important?

I mean, what is the... how would you define the important interest to the Federal courts in... in our seeing the constitutional issue your way?

ROBERT S PECK: --Well, first of all, Congress wanted to provide this Federal forum.

They clearly had the authority to do that.

But they also wanted to take in the interest of comity which this Court has always referred to as a vital consideration.

JUSTICE SOUTER: The State says, we don't want this kind of comity.

Keep it.

ROBERT S PECK: It's... it's very nice for the State to have that interest, but the federalist design of our Constitution provides that impetus that Congress was acting on.

JUSTICE SOUTER: No, but I... I want to get down to specifically what's important to the Federal courts and to Congress.

ROBERT S PECK: Well--

JUSTICE SOUTER: Why would it hurt the Federal courts if you lose this case?

What's... practically what's... what's at stake?

ROBERT S PECK: --I... I think there are... there are several things that might happen.

Right now what we call supplemental jurisdiction is a doctrine of discretion.

It would be turned into a doctrine of plaintiffs' rights, that if the State courts are refusing to receive these case... cases, then the Federal courts will be obligated to hear these State matters even if they were novel and complex matters in which only the State courts have the appropriate expertise to hear it.

And I think that would cause some problems.

JUSTICE GINSBURG: What difference does complexity make if the State Federal court's position is we don't want to clutter up Federal courts with a lot of State tort... garden variety, simple State tort claims?

We don't want to be a fender bender court.

ROBERT S PECK: And I think it is perfectly legitimate in Congress' jurisdiction-setting authority for them to make that determination.

These are matters that are--

JUSTICE GINSBURG: The... the idea is that Federal courts should be occupied with Federal cases and not with State cases.

ROBERT S PECK: --And I... I think that is an appropriate... appropriate reason for Congress to adopt this kind of a statute to assure that that happens.

The other... Justice Souter, the other possible consequence is that plaintiffs, fearful that a Federal court will not hear their matter, will not take it back if the... the State courts will not accept the matter, may be left without a cause of action on their State claim, that they will suddenly be shut out the door.

And in order to--

JUSTICE SOUTER: And how is that going to hurt the Federal courts?

ROBERT S PECK: --That does not necessarily hurt the Federal courts, but Congress certainly has a right to be concerned for those litigants and try to--

JUSTICE SOUTER: Why... why isn't the person to be concerned for those litigants the State courts under whose law the litigants want to sue?

ROBERT S PECK: --Because... because, Justice Souter, here the State courts have... have... Congress has basically done one thing.

They've... they've looked at the idea of comity that this Court had talked about in Guaranty Trust, in Ragan, and... and what they said is that comity is a reciprocal process.

It's got to have a two-way street.

And so what we're doing is we're not giving longer life in Federal court to what's in State court.

We have the authority to assign to the State courts a matter that is purely Federal in nature.

Now we have a matter that has a Federal interest because of the intervention of its arrival in Federal court, and because of that, we have enough authority also to say that this is a matter that the State courts can't refuse.

They can't suddenly say that we do not recognize the authority here--

JUSTICE STEVENS: But comity is traditionally a matter of consent rather than having one sovereign impress its... its law on the other.

I mean, it's consensual.

ROBERT S PECK: --It is consensual, but then again, the... the idea behind comity is tied up with our... our federalism and our idea that we have a dual court system.

That dual court system recognizes that there will be conflicts.

There will be some... some difficulties between the Federal and State systems.

Those difficulties is what Congress is trying to police.

It's a... it's a function that they have performed repeatedly, and the removal statute is a very good example of that.

And certainly Congress could insist... could insist that the State courts receive back even a matter that the Federal court erroneously dismissed rather than remand it.

And here they're not asking the South Carolina courts to do anything that they don't normally do.

If a... a matter is--

JUSTICE STEVENS: Well, they're asking the South Carolina courts to grant relief in a case that is outside the statute of limitations.

I take it they don't... the South Carolina courts don't normally do that.

ROBERT S PECK: --South Carolina courts, as... as we cited in the... the Hilton Head and Moriarty decisions, has said that they will sometimes waive the statute of limitations in the interest of justice.

Another instance in which they waive that issue is when venue has been misapplied.

When... when they demand that venue be placed in one particular place, you file in that wrong place, the statute of limitations expires before that court acts on it, they say it has jurisdiction to transfer it to the proper venue.

JUSTICE STEVENS: Well, would this case come out differently in the State?

Supposing Georgia, a neighboring State, had no such waiver.

Would this case come out differently there?

ROBERT S PECK: I don't think so, and the reason I don't think so is because when all that is left in the Federal court is a matter that is otherwise a State-based claim, that Federal court sits as just another court of that jurisdiction, another court within that State's system.

And for that reason... for that reason, it ought to be treated, when Congress so authorizes... and Congress, exercising that Article III, that necessary and proper powers that it had, utilizing the Supremacy Clause, authorizes that this be treated essentially by tolling as meeting the statute of limitations.

They have the right to define the meaning of what the Federal law is here, and that is simply what they've done.

They've done it by adopting a tolling provision that is not unlike other tolling provisions throughout the law.

And here it's clear that they... they've done something that they have the authority to do.

Tolling comports completely with the federalist design of the Constitution, enables the court's consideration of what court is best positioned to adjudicate.

That is decidedly a jurisdictional decision.

Here... and it's... and it... it is doing that by allowing the courts to control their own borders of what is appropriate to them and what is not.

JUSTICE GINSBURG: I thought the South Carolina Supreme Court agreed that as far as the Federal courts are concerned, this is all fine.

So it was necessary to spare the Federal courts having to sit on a case that no longer has a Federal element.

That's fine.

It serves a legitimate Federal purpose.

But, says South Carolina, you can't... it isn't proper to tell us then... they can dump it.

That's fine.

They can't tell us that we have to pick it up.

ROBERT S PECK: That is indeed what they've said.

But Stewart v. Kahn says otherwise.

JUSTICE GINSBURG: That was a... that was a Civil War tolling of the statute of limitations.

ROBERT S PECK: That is correct.

It found that within the war power, Congress had the authority to toll the statute of limitations in a State action brought in State court.

Obviously then there is no Tenth Amendment overlay that prevents the use of that war powers authority.

Here they have similar authority, both in Article I, section 8, to establish the inferior courts, as well as Article III where there's a cognate phrase, and that authority has to be equivalent.

They've used that authority also with respect to bankruptcy, again deriving from section 8.

And so here again there's no question that these other tolling provisions have been properly used.

No one has questioned their constitutionality in recent times, and this simply adopts a longstanding congressional approach to this issue.

It's one that this Court has previously approved.

If... if the respondent has his way, enormous mischief will result.

You leave the courts with a Hobbesian choice, a choice that they have been uncomfortable with in which you've seen courts granting motions for reconsideration, courts requiring waivers of a statute of limitations, so having much the same effect... and clearly when tolling does that, it is clearly appropriate to the judicial power... and in other instances, simply holding onto a case they would otherwise allow the State courts to do, again in the interest of the federalist overlay--

JUSTICE GINSBURG: Well... well, isn't it... if... suppose you should not prevail here.

Well, then you just bring... the plaintiff would bring two actions, bring... bring a protective action in the State court within the statute of limitations and then that would solve the problem, wouldn't it?

ROBERT S PECK: --But that... that's an unworkable solution.

Congress sought to avoid that.

Congress wanted to give a Federal forum capable of hearing all matters that a plaintiff would expect a single court to hear.

And by filing a protective action of that sort, first of all, you could not stop the State court from continuing to proceed, possibly eclipsing in speed the Federal court and coming up with res judicata on their Federal claim, as well as the fact that you may be signaling the Federal court that on the State matter we have a preference to be in State court when that really isn't the case.

I... I would... if there are no further questions, I would like to reserve the rest of my time.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Peck.

Mr. Lamken, we'll hear from you.

ORAL ARGUMENT OF JEFFREY A. LAMKEN ON BEHALF OF THE UNITED STATES, AS INTERVENOR

JEFFREY A LAMKEN: Mr. Chief Justice, and may it please the Court.

The tolling provision at issue here is within Congress' constitutional powers for two reasons.

First, it establishes the legal effect of a distinctly Federal set of events: the filing, pendency, and dismissal of an action in Federal court over a defendant over whom the court can exercise jurisdiction.

Second, it serves legitimate Federal interests, ensuring that if plaintiffs are held harmless for having selected a Federal forum in the first instance and ensuring that Federal courts are not required to exercise jurisdiction and decide cases that involve potentially sensitive issues of State law that are more reliably and more appropriately decided in the State court.

Because municipalities are not States or arms of the States, sovereign immunity does not prevent them from being hailed into Federal court and it doesn't prevent the Federal courts from exercising jurisdiction over cases against them, including supplemental State law claims.

Congress can establish the rules for when Federal courts should hear such claims and the rules for when they should not.

Congress has corresponding authority to establish reasonable rules about the legal consequences of the pendency of the Federal action, of the filing of the claim, its pendency, and the court's decision to dismiss it under specified rules that Congress itself has established.

The rule established here falls within the tradition of Federal control over the effect of Federal proceedings.

It falls in the tradition of, for example, legal effect of the filing of a bankruptcy petition which stays all the actions that are against the debtor and tolls the State limitations periods during the pendency of the automatic stay.

Or the removal provision which takes cases out of State courts, stays the proceedings in State courts, and thus prevents the State courts from proceeding in a way such as by deeming the case constructively dismissed that might have the effect of causing the statute of limitations to continue to run.

And the effect of a Federal... a judgment of a Federal court case.

All these are matters that are controlled by Federal law, and that Federal law is no less binding on State courts adjudicating State causes of action, including against municipalities, than they are on Federal courts.

The rule in this case serves twin Federal interests.

First, it holds plaintiffs harmless for having selected a forum... a State... excuse me... a Federal rather than a State forum in the first instance.

Absent this sort of rule, plaintiffs would face the risk, if they chose a Federal forum, of having the statute of limitations run on their State law claims.

If the Federal court then chose to dismiss, those State law claims would be barred.

And plaintiffs would have an artificial incentive to avoid Federal court, including for the assertion of their Federal law claims.

It also serves the interests of Federal courts in ensuring that they don't have to decide State law claims that are potentially sensitive, that under the standards this Court articulated in Gibbs that Congress has codified in section 1367(c) and it reflects sensible notions of division between State and Federal authority more appropriately belong in State court and can be more reliably adjudicated there.

This Court's decision in Stewart v. Kahn establishes that there is no constitutional impediment to congressional preemption of State tolling rules if it serves a legitimate Federal interest, the tolling provision here, like the social... excuse me... like the Soldiers' and Sailors' Relief Act, the bankruptcy automatic stay tolling rule, following that tradition.

Finally, the tolling rule here intrudes only modestly on State interests.

The timely filing of the State claims in Federal court serves all of the statute of limitations purposes as the claim... as the timely filing of those same claims in State court.

Accordingly, we ask that the judgment of the State supreme court be reversed.

If there are no further questions.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Lamken.

Mr. Lindemann, we'll hear from you.

ORAL ARGUMENT OF ANDREW F. LINDEMANN ON BEHALF OF THE RESPONDENT

ANDREW F LINDEMANN: Mr. Chief Justice, and may it please the Court.

By enacting section 1367(d), Congress has intruded on principles of State sovereignty.

This case involves more than just the tolling of a State law statute of limitations.

It involves, in this particular instance where a political subdivision is involved and South Carolina law is involved, specifically the South Carolina Tort Claims Act... this case involves a... a waiver of State law sovereign immunity, State law governmental immunity.

JUSTICE O'CONNOR: What about examples cited by the representative of the Solicitor General of the Soldiers' and Sailors' Civil Relief Act and other Federal laws that have a similar effect on South Carolina and other States?

ANDREW F LINDEMANN: Well, I would submit to the Court that, first of all, the issue has never come up, never been litigated in this Court, and as far as I'm aware, has never been litigated in any court whether or not the Soldiers' and Sailors' Act in any application is... is constitutional.

JUSTICE O'CONNOR: Okay.

So you think, as far as you're concerned, it would be the same problem and the same result.

ANDREW F LINDEMANN: No, I do not necessarily believe it will be the same result.

I believe it would be a much more difficult question for this Court than what was facing the South Carolina Supreme Court and is presently before this Court.

Unidentified Justice: Why?

ANDREW F LINDEMANN: Because you have different Federal interests that are involved.

And obviously, in determining whether or not the... a statute is proper under the Necessary and Proper Clause and to do a Tenth Amendment analysis, you have to look at... you have to weigh the various Federal and State interests that are involved.

In this particular case, which I'll elaborate more momentarily, you have very superficial, I would submit, Federal interests involved compared to a very substantial State interest of determining whether or not the State and its political subdivisions are subject to suit under State law.

JUSTICE STEVENS: But is it not... is it not correct... is it not correct that the intrusion on State sovereignty... forget the Federal side of the balance for a moment... the intrusion on State sovereignty is precisely the same under all these other statutes?

ANDREW F LINDEMANN: I would disagree, Justice Stevens.

JUSTICE STEVENS: Why is the intrusion in the Soldiers' and Sailors' Civil Relief Act any different than this one?

ANDREW F LINDEMANN: The Soldiers' and Sailors' Act... it would be a very similar intrusion on the... on the State sovereignty.

JUSTICE STEVENS: And how about the bankruptcy statute?

ANDREW F LINDEMANN: The bankruptcy... the actual... any... any of these statutes that have been cited by the petitioners and by the Government that actually provide for a stay of a State court action I think are substantially different because I would submit to the Court that a stay of a State court action, whether it's pursuant to the Bankruptcy Code, pursuant to the removal statutes, any of... Anti-Injunction Act, any of those does not have the same effect upon State sovereignty because it's not changing the actual liability of the defendant, in this particular case, Richland--

JUSTICE STEVENS: Well, neither does this statute change the liability.

It just preserves the cause of action.

ANDREW F LINDEMANN: --I--

JUSTICE STEVENS: Just like the Soldiers' and Sailors' statute.

ANDREW F LINDEMANN: --I... I would respectfully disagree, Justice Stevens, because what has occurred in this particular case is Richland County was entitled to State law sovereign immunity once 2 years passed from the date of the loss.

And at... at the point that this lawsuit was filed in State court--

JUSTICE STEVENS: Wouldn't it be entitled to sovereign immunity if a sailor had... had sued them too?

ANDREW F LINDEMANN: --Well, that's why I was trying to distinguish the stay cases from the Soldiers' and Sailors' Act.

I think the Soldiers' and Sailors' Act issue is a much closer question and there what you're weighing is much more substantial Federal interests.

JUSTICE STEVENS: I'm... I'm just looking at it from the State's point of view in the point of my questions.

It did not seem to me that the State interest in it being immune was any different in any of those situations.

ANDREW F LINDEMANN: Well, I would... I would submit that there is no difference in the Soldiers' and Sailors' context, but there would be a major difference in any of the situations involving a stay.

JUSTICE SCALIA: Mr. Lindemann, I don't... I don't see what difference it makes that the statute of limitations in this case was applied to... to what you call State sovereign immunity.

That is, you... you acknowledge that this entity, Richmond... Richland County, was... was not entitled to sovereign immunity as we know it under Federal law.

ANDREW F LINDEMANN: That's correct, Your Honor.

JUSTICE SCALIA: But you're saying that the State wished to confer upon Richland County a shorter statute of limitations for suit against it than... than this Federal statute permits.

Why is that any... any different from applying the same statute against South Carolina's determination that a private individual should not be suable after 2 years?

What difference does it make whether... whether the person being affected by it is a private individual or Richland County?

So long as it's not the State of South Carolina, Federal sovereign immunity law is not... is not at issue.

What do we care?

ANDREW F LINDEMANN: Well this, Your Honor, is not a case involving the Eleventh Amendment.

JUSTICE SCALIA: Exactly.

ANDREW F LINDEMANN: This is not a case that is involving Federal constitutional immunity.

JUSTICE SCALIA: Exactly.

ANDREW F LINDEMANN: This is a case that was brought... a negligence case that was brought in State court against a State governmental... or a local governmental entity in the State of South Carolina to which South Carolina law should apply.

And the reason why we contend that this violates the Tenth Amendment is it intrudes into the areas of State sovereignty to determine, number one, what South Carolina law provides ; number two, how South Carolina law determines whether or not their own governmental entities are subject to suit.

JUSTICE GINSBURG: But, Mr. Lindemann, one of the curiosities about this case is if the Federal court, once the Federal claim dropped out, decided that it would clean... clean up the operation, it would keep it in Federal court, there would be a Federal court adjudicating South Carolina's State law case.

The only regulating rules would be State rules.

And South Carolina says, that's okay with us.

They can take our law into the Federal court and apply it there and... but we don't want it back.

In other words, we want to force our cases to be litigated into... in the Federal court.

And that doesn't make a whole lot of sense.

ANDREW F LINDEMANN: Well, it's not as much that they're trying to force the Federal court to litigate the case.

Obviously, the plaintiff chose that forum to start with.

And Congress has deemed... has provided for supplemental jurisdiction.

So obviously Congress has provided a forum in Federal court for the litigation of these State law claims.

And so South Carolina has not said, you can't give it back to us, but what South Carolina had said is that in the interim, if there's a dismissal without prejudice of the State law claims in another court, whether it be the Federal district court or whether it be in a court of another State, if there's a dismissal without prejudice under South Carolina law, that's considered as if the suit had never been brought in the first place.

JUSTICE GINSBURG: In other words, you're saying it's all right with us if the Federal court adjudicates this purely State claim.

The State isn't offended by that, but it is offended by getting it back even though everyone had notice in ample time within the... the county had ample notice because they received a Federal summons and complaint.

So there was no question of... of repose involved.

But there's one... another aspect of this, it seems to me, passing strange.

Are you suggesting that the removal statute would be vulnerable to a similar attack?

Because that's really... if you're talking about State court, this is wrenching a case out of the State court, ousting the State court of jurisdiction, putting it into the Federal court.

I would think if you're right about sending it back, then you'd certainly object to lifting it out.

ANDREW F LINDEMANN: I don't believe the interest here is that South Carolina has a problem with... with the Federal court deciding issues of State law, and I don't think South Carolina has a problem with deciding those issues itself.

The problem South Carolina has in this particular case is with Congress expanding upon State law that actually set the boundaries as to when and how a political subdivision can be sued.

JUSTICE BREYER: What difference does it make whether it's a political subdivision or not?

Suppose South Carolina law said, gas stations shall be immune from suit except that you can sue them within two years, and then the same situation occurs.

Would... would not the Federal court be intruding upon South Carolina's decision of immunity just as much?

ANDREW F LINDEMANN: South... yes, the Congress would be intruding upon--

JUSTICE BREYER: So... so--

ANDREW F LINDEMANN: --the ability of the State of South Carolina to set a statute of limitations for private defendants.

JUSTICE BREYER: --That's... and that's all we're talking about, to set a statute of limitations whether it's for private defendants or whether it's for Richland County which, as far as Federal law is concerned, is a private defendant, or whether it's for gas stations.

I mean, I... you... you try to make something different of this case by saying what it involves in... is Richland County, but what we, the Federal courts, say is Richland County is not the State of South Carolina.

It is not a State entity, and as far as we're concerned, it's a gas station.

ANDREW F LINDEMANN: But I would submit to the Court two points in response to that.

It goes beyond because it's a governmental entity and you look at the application of State law because again, this is a State law case brought and adjudicated in a State court.

And you look at the State law which actually provides a greater defense for a governmental entity than it does for a private citizen.

To give the Court an illustration--

JUSTICE GINSBURG: You would have no--

JUSTICE BREYER: --You give greater defenses for gas stations.

Would... would that change the gas station case simply because you give greater defenses to gas stations?

ANDREW F LINDEMANN: --No, it would not change the case.

JUSTICE BREYER: Of course not.

ANDREW F LINDEMANN: My point is it... it actually makes a stronger case to show the intrusion on State sovereignty where you have a political subdivision.

And if I may illustrate.

Prior to 1985, South Carolina recognized absolute sovereign immunity for its State entities as well as its political subdivisions.

And if you looked at... the question that comes to mind is whether Congress, prior to 1985, could have enacted a statute that subjects Richland County, a political subdivision in the State of South Carolina, to a claim for negligence in the operation of its local detention center where South Carolina law itself provides there is no such claim because of sovereign immunity.

JUSTICE BREYER: The answer is, of course, they could if they had a... if there was a basis in the Constitution for the Federal Government to pass a law that changes State law.

They do it every day of the week.

And so usually what you ask is, is there a basis here?

Of course, there is.

They say Article III.

Indeed, was there a problem Congress was trying to cure?

Indeed, there is.

It was the mess that existed before the statute.

Is there an infringement of what the State would like to do?

Of course, there is but the Constitution gives the power to the Federal Government to do that.

Now... now, what's... that... like, you know, purely I'd say hornbook.

So what... what is the... what is the special thing about this infringement of the State's power to do what it would like to do here?

ANDREW F LINDEMANN: I respectfully disagree with you, Justice Breyer.

If, prior to 1985, Congress wanted to create a situation where Richland County would be liable for the operation of its detention center, it would have to do so in the context of a Federal cause of action which obviously existed at that time under section 1983.

What I'm saying is--

JUSTICE BREYER: So Congress in your opinion doesn't have the power to... to interfere with State law insofar as it creates State laws of action?

Congress couldn't pass tort reform, for example.

ANDREW F LINDEMANN: --Well, I believe tort reform in certain instances would be permissible.

I... I believe that... and certainly the... the precedent set by this Court supports this... that Congress has the authority through preemption and through its properly enacted statutes to limit the liability in State court actions... in State law actions, but cannot create liability where none existed previously.

And I'd submit to the Court that I'm not aware of any single example where Congress has stepped in and created a statute that creates a... a State law cause of action or expands upon a State law cause of action to create liability where none existed.

JUSTICE BREYER: Except the Soldiers' and Sailors' Relief Act, for example.

ANDREW F LINDEMANN: Well, and the Soldiers' and Sailors' Relief Act, if it is indeed constitutional, is based upon a different weighing of the Federal interest versus the State interest.

You obviously in that case have much greater Federal interest involved than the simple convenience to litigants to have to be able to be... have the ability to file your Federal and State claims in the same Federal action without concern that your State action might ultimately be dismissed after the statute of limitations ran.

Obviously the Soldiers' and Sailors' Act involves First Amendment war powers.

It involves issues of national defense and deployment of armed services around the country where they're not available to... where they don't have the immediate availability of access to our court system.

Those are much different rights, much different Federal interests, and would create a much different issue.

And how this Court would ultimately resolve that issue I cannot say, but it would certainly make a much stronger case for allowing that than the simple case that is... or the Federal interests that are at stake in this particular instance.

The--

JUSTICE GINSBURG: If we went back to the old ways, is there any unconstitutionality in one of the things that was done?

And the Federal judge will say, yeah, this is really State business, but I'm not going to subject the plaintiff to a time bar.

So, defendant, Richland County, any defendant, will you agree that you will waive the statute of limitations should I dismiss this case without prejudice.

The... the... the State... the county certainly could do that.

ANDREW F LINDEMANN: --That... that happened frequently prior to 1990, and I'm actually aware of... personally of instances even since 1990 where that's been the case--

JUSTICE GINSBURG: And how about bringing--

ANDREW F LINDEMANN: --and that obviously is the solution.

JUSTICE GINSBURG: --A plaintiff brings a protective action and says, I really want this 1983 claim to be the front runner, but if I fail on that, I want to have these garden variety State... whatever it is... assault cases.

So the plaintiff begins a State... a case in State court and the State tort claims, the Federal case, including the 1983 claim.

ANDREW F LINDEMANN: That's right.

JUSTICE GINSBURG: Then that would be perfectly all right.

ANDREW F LINDEMANN: That would be perfectly all right, and in fact--

JUSTICE GINSBURG: And all that accomplishes is having two cases instead of one, which is if... if that can be avoided, it's... for the efficiency of the system, it's a pretty good idea, isn't it?

ANDREW F LINDEMANN: --But realistically looking at the way 1367(d) operates anyway is you often do have two separate lawsuits such as what we have in this particular instance.

JUSTICE GINSBURG: But that's 1367(d) was meant to overcome I thought, having two lawsuits going on, just to have the... the State court sitting there and nothing happening in the event that the Federal court should dismiss the Federal claim and there's a live lawsuit to pick up.

ANDREW F LINDEMANN: There are many different alternatives that courts dealt with this issue prior to 1990.

And in fact, I'd submit that there's certainly no authority to support any finding or any conclusion that litigants' due process rights were violated before 1367(d) was enacted.

JUSTICE BREYER: No.

It wasn't necessary to litigants.

It's just that your solution to the problem permits the two parties who want to try their case in Federal court to confer a jurisdiction on the Federal court that the district judge believes it doesn't have and doesn't want.

ANDREW F LINDEMANN: Well, and... and that is true.

JUSTICE BREYER: So from a point of view of protecting the State, I guess Congress dived into this mess.

I... I wrote an opinion.

You might... to recall it to mind, it happened to involve a plagiarism.

Did you read... I had a 1st Circuit case.

It involved plagiarism of an Icelandic poet called Franjen Gendulik.

Unidentified Justice: [Laughter]

ANDREW F LINDEMANN: I'm not aware of that--

JUSTICE BREYER: And in that... you're not aware of that.

Well, if you don't... that doesn't call it to mind--

JUSTICE SCALIA: --It was made into a movie, wasn't it?

Unidentified Justice: [Laughter]

JUSTICE BREYER: But the poem was Suze Sine Razmut Nogot.

In any case, the... the point was at the end of that it seemed like a terrible mess.

There seemed like five solutions.

Each of them had something to be said for it, and so Congress went in to legislate in order to deal with this procedural mess.

Now... now, why isn't that a legitimate interest just as legitimate as the interest in protecting soldiers and sailors, the interest that underlies lots of other Federal legislation?

ANDREW F LINDEMANN: --Well, I would submit to Your Honor that that is certainly not a very substantial Federal interest to the extent it is a Federal interest.

JUSTICE BREYER: To deal with a problem of unfairness to States, unfairness to litigants, try to have a uniform rule?

ANDREW F LINDEMANN: Well, I don't believe it... it creates unfairness necessary to litigants, and there are obviously solutions around it... and was dealt with by... many courts dealt with this particular issue prior to 1990.

And I would submit that when you balance that Federal interest with the State interests that are involved here and... which is obviously what... what's the analysis under the Tenth Amendment, that the result should be that the State interests involved to be able to control State law and State law claims, to be able to control when and how State... States and their political subdivisions are subject to suit under State law, that those interests far outweigh the Federal interest.

Obviously it is a balancing problem.

JUSTICE STEVENS: Isn't... isn't one of the questions who should do the balancing?

Should we do it or should Congress do it?

ANDREW F LINDEMANN: Well--

JUSTICE STEVENS: Doesn't Congress normally make this kind of policy decision?

ANDREW F LINDEMANN: --Well, I believe in this--

JUSTICE STEVENS: And the branch of the Federal Government that makes this kind of policy decision.

ANDREW F LINDEMANN: --Well, there... there's clearly no... no legislative history that suggests that Congress made that particular balancing.

In fact, there's nothing in the legislative history--

JUSTICE STEVENS: No, but I assume the State of South Carolina was represented in Congress at the time they made that decision and could be... could raise all these objections in that forum.

ANDREW F LINDEMANN: --Well, I would submit to the Court that just as this Court ruled in the Raygor case last term in the Tenth Amendment context, just like in the Eleventh Amendment context--

JUSTICE STEVENS: The Eleventh Amendment was really implicated there.

ANDREW F LINDEMANN: --you have to look at whether or not there's a clear statement that Congress intended to affect Federal-State relations such as it did.

JUSTICE STEVENS: No, but I think the clear statement rule is limited to States, and of course, counties are not considered the same as States.

ANDREW F LINDEMANN: Well, I would... I would submit to the Court that if... if Your Honor is suggesting that only comes into play in Eleventh Amendment cases, that... that... I would disagree with that because Gregory versus Ashcroft was a Tenth Amendment case and this Court ruled based upon the clear statement rule.

Now, whether or not a party has standing to assert--

JUSTICE GINSBURG: Was that... was that a... an immunity--

Unidentified Justice: --That was State officials.

JUSTICE GINSBURG: --official... an officer immunity case?

ANDREW F LINDEMANN: --That was a case.

It was a... a ADEA case, Your Honor, looking at the qualifications of State judges in the State of Missouri.

JUSTICE GINSBURG: But the difference is that the State is not amenable to suit in Federal court.

The municipality is just like any other corporation.

So--

ANDREW F LINDEMANN: I don't disagree with that.

That's why we are not pursuing this matter under the Eleventh Amendment.

However, a municipality has standing to assert a challenge under the Tenth Amendment, and this Court in the Printz case, Printz v. United States, was actually--

JUSTICE GINSBURG: --It's not a kind of jurisdictional challenge.

I mean, the State... if the State were sued in Federal court and there was a pending claim, the State would say you... we don't fit under 1367(a), and the State is not there at all.

But here this claim is properly brought in Federal court against the city.

Is that right?

ANDREW F LINDEMANN: --That... that's correct, Your Honor.

JUSTICE GINSBURG: So it seems to me there's a very large difference in that respect.

ANDREW F LINDEMANN: We... we are certainly not arguing that 1367(d) is unconstitutional as applied to... I mean, (a) is unconstitutional as applied to Richland County.

What we're arguing is that the expansion of the State law statute of limitations and the limited waiver of sovereign immunity under State law is what, as applied in this particular case, violates the Tenth Amendment.

JUSTICE GINSBURG: I can see in the abstract what your argument is, but in the concrete, let's take the removal case.

So there's a case lodged in State court.

It's lifted up, put into Federal court, and then more than 2 years later, it gets remanded.

Practically what's the difference in terms of South Carolina and its concern with stale claims between those two cases?

ANDREW F LINDEMANN: Well, Your Honor, obviously a removal situation is substantially different in that jurisdiction was first lodged in the State court, and as a result, any type of waiver issue or any type of statute of limitations issue would be resolved by the fact that there was a initial filing of the State court claim in the State court.

JUSTICE GINSBURG: But functionally I don't see any significant difference if the concern is we don't want stale claims.

We don't want to adjudicate claims that have been hanging around more than two years.

In my case, yes, you touched base in Federal... in State court.

What you got was what you got in Federal court, that is, notice that the plaintiff is suing arising out of this particular episode.

I don't see practically any difference if the State's... the State is trying to protect its concern for adjudicating stale claims.

The claim is still stale when it comes back from the Federal court.

ANDREW F LINDEMANN: It's not so... as Your Honor pointed out earlier, it's not solely an issue of repose because here because the respondent, the defendant in the... in the underlying case is a governmental entity, there is a aspect of State sovereign immunity that comes into play that doesn't come into play in... in the other instances.

And so you have the added interest of preserving the right of the State in order to determine whether it's going to waive its sovereign immunity, which of course didn't happen until 1985, and when it does waive sovereign immunity, the extent to which it's going to waive it.

And again, I'm referring to State law sovereign immunity, not Federal constitutional immunity under the Eleventh Amendment or otherwise.

So what--

JUSTICE SCALIA: I understand that.

I just don't understand why you think we should... we should care.

ANDREW F LINDEMANN: --Well--

JUSTICE SCALIA: If you're not talking about Federal sovereign immunity of the State, why should we care if... if the State chooses to create some other kind of sovereign immunity that... that isn't the kind that we're concerned about?

ANDREW F LINDEMANN: --Because it goes, Your Honor, to the heart of exactly what the... the State sovereignty, the interests of State sovereignty that's involved in this case.

JUSTICE SCALIA: No, it doesn't.

No, it doesn't.

The... the essence of State sovereignty is everything covered by Federal State sovereign immunity which is States and agencies of States.

Everything else is not central to State sovereignty, whether... whether they choose to make Richland County a... you know, give them some State sovereignty protection or... or choose to make a gas station that way.

I don't... I just don't understand why you expect this to impress us, that the State has gone beyond Federal State sovereign immunity and created some new element of State sovereign immunity.

I mean, they're... they're free to do that, but I don't see how it invokes any new doctrine under either the Eleventh Amendment or the Tenth Amendment or any other provision of Federal law.

ANDREW F LINDEMANN: Well, I'm not submitting that it creates any type of new doctrine, Your Honor.

What I'm suggesting is that it's an aspect of State sovereignty for a State court... I mean, for a State legislature to determine what the law is in that State that is applicable purely to State law claims litigated in a State court.

JUSTICE SOUTER: Okay.

Why isn't the answer then necessarily the same whether we have a private litigant or whether we have a... a political subdivision?

They said for the private litigants, two year statute of limitations.

Why isn't your answer exactly the same?

The State was exercising the State's... the same sovereign power in each case.

ANDREW F LINDEMANN: Well, I believe it would also apply to a private litigant, and I didn't try to convey to the Court--

JUSTICE SOUTER: Okay.

I... I hadn't understood that was your position.

ANDREW F LINDEMANN: --What I'm trying to suggest to the Court is because you have this added element of State law sovereign immunity, which is created by the State constitution, it makes it even a more compelling Tenth Amendment--

JUSTICE SOUTER: But you don't... you don't need it.

You don't need it.

The private litigant doesn't have any sovereign immunity rights under State law, but the private litigant would be able to insist on the two-year statute just the way the county is insisting on it here.

ANDREW F LINDEMANN: --I believe that would be the case.

Now, that's not the issue, obviously, before this Court and that's not decided by the South Carolina Supreme Court.

The South Carolina Supreme Court decided this case in a very limited fashion and found that 1367(d) as applied to political subdivisions in South Carolina, given the South Carolina Tort Claims Act and the history of sovereign immunity... State law sovereign immunity in that State, that as a result, as applied to Richland County, it's unconstitutional.

JUSTICE GINSBURG: Suppose a judge should say... the Federal judge... knowing South Carolina's position on this question, I'll keep the case, which is now an entirely State case, and I know that in diversity cases I'm supposed to apply the State statute of limitations.

So if the Federal judge keeps this case in deference to South Carolina's position that it doesn't want it, it's too late, and the Federal court in a diversity case must apply the State statute of limitations, when... when does that limitation begin, when South Carolina said it would if the case were reinstituted there?

ANDREW F LINDEMANN: No, Your Honor.

I would... I would submit that the statute of limitations started to... or ran from obviously the date of loss through... through for the two-year period, and if the case was filed in Federal court within that two-year period, the statute of limitations, as well as the... the argument that sovereign immunity applies, would not be applicable to that case.

But what occurred in this case is there was a dismissal without prejudice of the State law claims.

Under South Carolina law, a dismissal with prejudice is treated as if the suit was never brought in the first place.

And as a result, when the case was refiled in the State court, it was refiled beyond the two years, at which point the statute of limitations had run and at which point Richland County was also entitled to absolute immunity under the South Carolina Tort Claims Act.

And I would again submit to the Court that the reason why we believe that this is a significant issue under the Tenth Amendment for this case and why the Eleventh Amendment jurisprudence of this Court does not govern is... is because of the importance of the State law interest.

And the key to this whole argument is the point that this is not a Federal claim litigated in Federal court.

In fact, the cases that have been cited by the petitioner in their briefs, the Burnett case, the Order of Railroad Engineers case, all of those cases are distinguishable because those are Federal causes of action that are litigated in Federal court.

This is a State law claim that's litigated in State court under purely State law, and we would submit that the South Carolina General Assembly should decide what is the applicable South Carolina law and that Congress does not have the power under Article III and the Necessary and Proper Clause to override that statement of State law and to create liability where no liability previously existed.

And that is the key point.

Congress has the authority through a validly enacted statute and through use of the Supremacy Clause to limit liability in State actions by providing for preemption, ERISA being an example, but there is no example that I'm aware of where Congress has created liability where none previously existed.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Lindemann.

ANDREW F LINDEMANN: Thank you, Your Honor.

CHIEF JUSTICE REHNQUIST: Mr. Peck, you have 4 minutes remaining.

ROBERT S PECK: If the Court has no further questions, I would ask that the Supreme Court of South Carolina be reversed and would waive rebuttal.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Peck.

The case is submitted.

Unidentified Justice: The honorable court is now adjourned until Monday next at 10 o'clock.

(Whereupon, at 12:15 p.m., the case in the above-entitled matter [*43] was submitted.)