“Tolling” versus “Suspending”: Which is it? SCOTUS says “tolling” means tolling.
Imagine a plaintiff who has both federal and state law claims. This is commonly the case in employment lawsuits where a plaintiff may, for example, have federal discrimination claims (often under Title VII) and state law claims (such as assault). Imagine that plaintiff faces a 2-year statute of limitations on their state law claims. Assume he files his EEOC charge, receives a right to sue and, exactly 1 year after the incidents at-issue, files his federal lawsuit. In that lawsuit he also asserts his state law claims. 14 months later, the federal court dismisses the federal claims, then, without ruling on the merits of the state law claims, dismisses them because there is no longer a federal claim to establish federal jurisdiction. At that point, it’s been 26 months (12+14) since the incidents at-issue occur, in other words, the 2-year (24 month) statute of limitations is 2-months expired.
So does the state law 24-month statute of limitations bar the plaintiff from re-filing his state law claims, this time in state court? No, there is a federal statute, 28 USC 1367(c), that says state law claims are “tolled” while the case is pending in federal court and, thereafter, for another 30 days. In other words, our hypothetical plaintiff can still file his state lawsuit, but he has to do so quickly, at least within that 30-day period.
But what if our hapless plaintiff misses that 30-day period? In other words, the judge ruled 26 months after the incidents at-issue. He clearly had the right to file during that 27 month, but what if he misses that window and doesn’t file until, say, the 30th month? Did his deadline expire at the end of that 30-day period or, because sec. 1367(c) says the state statute of limitation is “tolled,” does he get that 30 days plus another 14 months for the period his case was pending in federal court?
Faced with a choice between reading sec. 1367(c) as giving that plaintiff either just 1 month (30 days) or 15 months (30 days plus 14 months), the Supreme court held, in a divided opinion, that he has15 months in that scenario. In other words, the majority held that, because the federal tolling statute says the state statute of limitations is “tolled,” the plaintiff stopped the clock when he filed his federal lawsuit. He gets all the rest of the state statute of limitations after that, in other words, all the time that the case was pending before the federal court, plus the federal tolling statute’s 30 extra days.
That is, the limitations clock stops the day the claim is filed in federal court and, 30 days postdismissal, restarts from the point at which it had stopped.
The majority’s 5-4 decision reverses the lower Circuit Court and overrules a dissent, both of which would have held that the plaintiff only had 30 days. In a frankly odd dissent, the normally articulate J. Gorsuch explained the dissent’s view of sec. 1367 by analogizing to an obscure 1929 book:
Chesterton reminds us not to clear away a fence just because we cannot see its point. Even if a fence doesn’t seem to have a reason, sometimes all that means is we need to look more carefully for the reason it was built in the first place. The same might be said about the law before us.
The decision is a victory for plaintiffs. Although a relatively unusual scenario, the majority’s reading of sec. 1367 provides plaintiffs with time to carefully consider their next move (whether and what to file in state court) following an adverse ruling in federal court.
Source: Artis v. District of Columbia, 138 S.Ct. 594 (2018).