BY Donald J. Spero, Esq.

Supreme Court Allows Tolling of Limitations on State Court Actions Remanded From Federal Courts in Jinks v. Richland County, South Carolina.

Court Limits Holding of Raygor v. Regents of the University of Minnesota to Barring Such Tolling Only When Action is Against an Instrumentality of the State.

It is not uncommon for a plaintiff with an employment claim based on a federal statute to file suit on that claim in federal court and join related state law claims with the federal action. This is permissible under 28 U.S.C. §1367(a) which provides in part that:

The district court may decline to retain such supplemental jurisdiction where it has "...dismissed all claims over which it has original jurisdiction." Thus a plaintiff's state law claims may dismissed without prejudice if the defendant's motion to dismiss or for summary judgement is granted as to all federal claims. This could take place after the limitation periods for filling the supplemental state law claims have passed. To provide relief in such a circumstance the statute allows in 28 U.S.C. §1367(d):

The period of limitation for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless state law provides for a longer tolling period.

Raygor v. Regents of the University of Minnesota involved age discrimination claims under both state and federal laws against a state university that was dismissed for want of jurisdiction due to states' sovereign immunity as established by the Eleventh Amendment to the United States Constitution. In Raygor the Supreme Court held that § 1367(d) does not toll a supplemental claim against a state that is dismissed when it is appended to a claim that is dismissed on Eleventh Amendment grounds. The Court reasoned that Congress' extending a state limitation period as applied to an action against a state would be an abrogation of the state's Eleventh Amendment immunity to suits by individuals. Congress can only override states' immunity when it does so under a power conferred on it by the Fourteenth Amendment to the Constitution and where the language of the statute shows a clear intent to abrogate that immunity. In Raygor the court held that no such clear intent is shown in 1367(d).

In a recent decision written by Justice Scalia, Jinks v. Richland County, South Carolina, the Supreme Court made it clear that § 1367(d) is applicable to actions against entities other than states. In this case the defendant was a county. Jinks reafirms that political subdivisions of a state do not enjoy Eleventh Amendment immunity.

Jinks was a tort action growing out of the death of the plaintiff's husband while in police custody. The plaintiff sued in federal district court alleging violations of 42 U.S.C. § 1983 along with supplemental tort claims under state law. The court granted the defendants' motion for summary judgement on the § 1983 action and dismissed the supplemental claims declining to retain jurisdiction over them. The plaintiff then sued in state court where she obtained a favorable jury award. The verdict was overturned by the South Carolina Supreme Court. The state court ruled that the state court action was filed after the limitations periods for the asserted claims had expired. The state court declined to apply § 1367(d) to toll the limitation periods. It reasoned that § l367(d) was an unconstitutional interference with a states' "...sovereign authority to establish the extent to which its political subdivisions are subject to suit."

In reversing the decision below a unanimous Court relied on the "necessary and proper" clause of the United States Constitution in Article I, §8, clause 18. That clause empowers Congress "To make all laws which shall be necessary and proper for carrying into Execution...[the powers granted to Congress in that section as well as]...all other powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof." One such power granted by Article I, Section 8 is "To constitute tribunals inferior to the Supreme Court." Furthermore by Article III, Section 1 of the Constitution "The judicial Power of the United States [is] vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

The Court found that § 1367(d) is necessary and proper for executing Congress' power to create tribunals inferior to the Supreme Court and to properly exercise the "judicial Power of the United States." The Court reasoned that although the lower courts could function in the absence of § 1367(d) the exercise of the power did not have to be "absolutely necessary" to the exercise of a power of Congress. Rather it suffices if it is merely " 'conducive to the administration of justice' in federal court and ...'plainly adapted' to that end."

The Court considered the enigma faced by a plaintiff with state and federal claims growing out of a common nucleus of facts. In the absence of § 1367(d) the plaintiff might have to undergo the costly expedient of filing claims in both state and federal court to avoid the risk of being time barred if the federal court declined to retain jurisdiction over the state claim. Alternatively the plaintiff could file in one forum abandoning the claim that would most properly be heard in the other forum. Relieving plaintiffs of this burden was found by the Court to be conducive to the administration of justice.

The Court rejected the County's argument that state limitation periods involved procedure rather than substantive law. It contended that Congress could not constitutionally regulate procedure in state courts. The court found, assuming arguendo that there was a difference in Congress' powers to regulate the administration of substantive law as opposed to state court procedure, that for the current purpose the limitations periods were substantive.

The Court also rejected the defendant's contention that extending limitation periods for actions against counties was an impermissible abrogation of state sovereign immunity. The Court pointed to its reasoning in Alden v. Maine that Congress "...may subject a municipality in state court if that is done pursuant to a valid exercise of its enumerated powers." The Court declined to differentiate between tolling the limitation on rights of actions against counties under state law and the clear right of Congress to override state immunity by subjecting counties to suits under federal law. The Court further found that Congress did not need to be unmistakably clear in its intent to override a county's immunity as it would in order to abrogate a state's immunity. Clearly a state's political subdivisions do not have constitutional standing equivalent to that of the state.

Unquestionably as to private persons and entities, as well as to political subdivisions, § 1367(d) is a valid exercise of Congress' power. Plaintiffs may now join supplemental claims with federal claims in federal court without fear of the expiration of their right to sue on those claims if the federal court declines to retain jurisdiction of them. However they must file in state court withing 30 days of the federal court dismissal in order to have the benefit of the tolling afforded by § 1367(d).

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