No. 00-1514 

In the Supreme Court of the United States 

LANCE RAYGOR AND JAMES GOODCHILD, PETITIONERS 

v. 

REGENTS OF THE UNIVERSITY OF MINNESOTA 

ON WRIT OF CERTIORARI 
TO THE SUPREME COURT OF MINNESOTA 

BRIEF FOR THE UNITED STATES 

THEODORE B. OLSON 
Solicitor General 

Counsel of Record 

ROBERT D. MCCALLUM, JR. 

Assistant Attorney General 

PAUL D. CLEMENT 

Deputy Solicitor General 

BARBARA MCDOWELL 

Assistant to the Solicitor 

General 

MARK B. STERN 
ALISA B. KLEIN 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-5432 

QUESTION PRESENTED 

The Minnesota Supreme Court held that 28 U.S.C. 
1367(d), the tolling provision of the supplemental 
jurisdiction statute, is unconstitutional as applied to 
claims against a nonconsenting state defendant. The 
United States addresses the antecedent question of 
whether Section 1367(d) may fairly be construed to 
avoid that constitutional question. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Constitutional and statutory provisions involved ................... 
2 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
8 

Argument ........................................................................................ 10 

I. Section 1367, and Section 1367(d) in particular, 

should be understood not to apply to state-law 

claims against nonconsenting state defendants ............ 
12 

A. Interpreting Section 1367 to apply to non- 
consenting States raises serious constitutional 

questions ....................................................................... 12 

B. Interpreting Section 1367 as inapplicable to 

nonconsenting States is consistent with con- 
gressional intent and avoids constitutional 

difficulties ..................................................................... 14 

II. Section 1367(d) does not apply to state-law claims 

that are dismissed for reasons unrelated to the 

terms of the supplemental jurisdiction statute ............. 
19 

A. The text, legislative record, and underlying 

purpose of the supplemental jurisdiction 

statute support a narrow reading of Section 

1367(d) ........................................................................... 19 

B. Most courts and commentators have read 

Section 1367(d) narrowly ........................................... 
27 

C. A narrow construction of Section 1367(d) does 

not foreclose the application of state tolling 

rules to state-law claims ............................................ 

30 

Conclusion ....................................................................................... 31 

Appendix ......................................................................................... 1a 

(III) 

IV 

TABLE OF AUTHORITIES 

Cases: Page 

Alden v. Maine, 527 U.S. 706 (1999) .................................. 

8, 13 

Aldinger v. Howard, 427 U.S. 1 (1976) .............................. 

3 

Ashwander v. Tennessee Valley Auth., 297 U.S. 

288 (1936) ................................................................................. 

11 

Atascadero State Hosp. v. Scanlon, 473 U.S. 234 

(1985) ........................................................................................ 15 

Benoni v. Boston and Maine Corp., 828 F.2d 52 (1st 

Cir. 1987) ................................................................................. 

20 

Blatchford v. Native Vill. of Noatak, 501 U.S. 775 

(1991) .............................................................................. 

15, 16, 18 

Burnett v. New York Cent. R.R., 380 U.S. 424 

(1965) ........................................................................................ 30 

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 

(1988) .................................................................................... 

24, 26 

City of Chicago v. International Coll. of Surgeons, 

522 U.S. 156 (1997) ................................................................ 

2 

Cooley v. Pennsylvania Hous. Fin. Agency, 830 

F.2d 469 (3d Cir. 1987) .......................................................... 

23 

Dellmuth v. Muth, 491 U.S. 223 (1989) ............................ 

9, 15 

Duckworth v. Franzen, 780 F.2d 645 (7th Cir. 

1985), cert. denied, 479 U.S. 816 (1986) ............................. 

23-24 

Edward J. DeBartolo Corp. v. Florida Gulf Coast 

Bldg. & Constr. Trades Council, 485 U.S. 568 

(1988) ................................................................................ 

8, 11, 14 

Edwards v. Okaloosa County, 5 F.3d 1431 (11th 

Cir. 1993) ................................................................................. 

23 

Financial Gen. Bankshares, Inc. v. Metzger, 680 

F.2d 768 (D.C. Cir. 1982) ...................................................... 

24 

Finley v. United States, 490 U.S. 545 (1989) .................... 

3 

Giardiello v. Balboa Ins. Co., 837 F.2d 1566 (11th 

Cir. 1988) ................................................................................. 

23 

Henderson v. United States, 517 U.S. 654 (1996) ............ 14 

V 

Cases—Continued: Page 

Henson v. Columbus Bank & Trust Co., 651 F.2d 

320 (5th Cir. 1981) .................................................................. 

23 

Kimel v. Florida Bd. of Regents, 528 U.S. 62 

(2000) ........................................................................................ 6 

O’Brien v. Continental Ill. Nat’l Bank & Trust Co., 

593 F.2d 54 (7th Cir. 1979) ................................................... 

23 

Ovadia v. Bloom, 756 So. 2d 137 (Fla. Dist. Ct. App. 

2000) ......................................................................................... 28 

Owen Equip. & Erection Co. v. Kroger, 437 U.S. 

365 (1978) ................................................................................. 

3 

Parrish v. HBO & Co., 85 F. Supp. 2d 792 (S.D. 

Ohio 1999) ................................................................................ 

28 

Pennhurst State Sch. & Hosp. v. Halderman, 465 

U.S. 89 (1984) .................................................................... 

7, 9, 13 

Public Citizen v. United States Dep’t of Justice, 

491 U.S. 440 (1989) ............................................................. 

11, 12 

Securities and Exch. Comm’n v. Wall St. Publ’g Inst. 

Inc., 851 F.2d 365 (D.C. Cir. 1988), cert. denied, 

489 U.S. 1066 (1989) .............................................................. 

21 

Seminole Tribe of Fla. v. Florida, 517 U.S. 44 

(1996) ........................................................................................ 13 

Stevens v. ARCO Mgmt. of Wash., D.C., Inc., 751 A. 2d 

995 (D.C. 2000) ....................................................................... 

29 

United Mine Workers of Am. v. Gibbs, 383 U.S. 

715 (1966) ...................................................................... 

2, 3, 23, 26 

United States v. Mottaz, 476 U.S. 834 (1986) .................... 

14 

United States v. Williams, 514 U.S. 527 (1995) ............... 

14 

Zadvydas v. Davis, 121 S. Ct. 2491 (2001) ........................ 

11 

Constitution and statutes: 

U.S. Const.: 

Art. I ........................................................................................ 

13 

Art. III ..................................................................................... 

3 

Amend. XI ................................................................... 

passim, 1a 

Age Discrimination in Employment Act of 1967, 

29 U.S.C. 621 et seq. ............................................................... 5 

VI 

Statutes—Continued: Page 

Civil Rights Act of 1964, Title VII, 42 U.S.C. 2000e 

et seq. ........................................................................................ 

18 

Judicial Improvements Act of 1990, Pub. L. No. 101- 

650, 104 Stat. 5089 ................................................................. 

2 

28 U.S.C. 1331 ............................................................................ 

3 

28 U.S.C. 1362 ............................................................................ 

16 

28 U.S.C. 1367 ................................................................. 

passim, 1a 

28 U.S.C. 1367(a) .......................... 

2, 7, 12, 15, 16, 17, 20, 29, 1a 

28 U.S.C. 1367(b) ................................................................... 

29, 1a 

28 U.S.C. 1367(c) .................................................... 

7, 27, 28, 29, 2a 

28 U.S.C. 1367(c)(1) .............................................................. 

10, 2a 

28 U.S.C. 1367(c)(3) .............................................................. 

10, 2a 

28 U.S.C. 1367(d) ............................................................ 

passim, 2a 

28 U.S.C. 1447 (1994 & Supp. V 1999) ................................... 

24 

Minnesota Human Rights Act, Minn. Stat. ch. 363 

(1991) ........................................................................................ 5 

Miscellaneous: 

Federal Judicial Code Revision Project, Tentative 

Tentative Draft No. 2 (1998) ................................................ 
28 

Brian A. Beckcom, Pushing the Limits of the Judicial 

Power: Tolling State Statutes of Limitations Under 
28 U.S.C. § 1367(d), 77 Tex. L. Rev. 1049 (1999) ............. 

30 
136 Cong. Rec. 36,291 (1990) ................................................... 
22 

Federal Courts Study Committee Implementation 

Act and Civil Justice Reform Act: Hearing Before 
the Subcomm. on Courts, Intellectual Property, and 
the Administration of Justice of the House Comm. 
on the Judiciary, 101st Cong., 2d Sess. (1990) ............. 

3, 4, 20, 
21, 25 

1 Federal Courts Study Committee, Working Papers 
and Subcommittee Reports (July 1, 1990) ......................... 
24 
H.R. 5381, 101st Cong., 2d Sess. (1990) ................................ 
21 

H.R. Rep. No. 734, 101st Cong., 2d Sess. (1990) ......... 
2, 20, 22 

Denis F. McLaughlin, The Federal Supplemental 

Jurisdiction Statute-A Constitutional and Statutory 
Analysis, 24 Ariz. St. L.J. 849 (1992) ................................ 29, 30 

VII 

Miscellaneous—Continued: Page 

16 Moore’s Federal Practice (3d ed. June 2001) .................. 
28 

John B. Oakley, Prospectus for the American Law 

Institute’s Federal Judicial Code Revision Project, 
31 U.C. Davis L. Rev. 855 (1998) .................................... 

25, 28 
Report of the Federal Courts Study Committee 
(Apr. 2, 1990) .......................................................................... 
3 

Arthur D. Wolf, Codification of Supplemental Juris- 
diction: Anatomy of a Legislative Proposal, 14 W. 
New Eng. L. Rev. 1 (1992) ................................................. 
4, 15 

13B Charles A. Wright et al., Federal Practice and 

Procedure (Supp. 2001) ........................................................ 27 

In the Supreme Court of the United States 

No. 00-1514 

LANCE RAYGOR AND JAMES GOODCHILD, PETITIONERS 

v. 

REGENTS OF THE UNIVERSITY OF MINNESOTA 

ON WRIT OF CERTIORARI 
TO THE SUPREME COURT OF MINNESOTA 

BRIEF FOR THE UNITED STATES 

OPINIONS BELOW 

The opinion of the Minnesota Supreme Court (Pet. 
App. A1-A15) is reported at 620 N.W.2d 680. The 
opinion of the Minnesota Court of Appeals (Pet. App. 
A16-A26) is reported at 604 N.W.2d 128. The opinion of 
the Hennepin County District Court (Pet. Br. App. B1- 
B13) is unreported. 

JURISDICTION 

The judgment of the Minnesota Supreme Court was 
entered on January 4, 2001. The petition for a writ of 
certiorari was filed on March 30, 2001, and was granted 
on June 4, 2001. The jurisdiction of this Court rests on 
28 U.S.C. 1257(a). On October 9, 2001, the Court 

(1) 

2 

granted the motion of the United States to intervene in 
the case pursuant to 28 U.S.C. 2403. 

CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED 

The Eleventh Amendment to the United States 
Constitution is reproduced in the appendix to the brief. 
App., infra, 1a. Section 1367 of Title 28 is also repro- 
duced in full in the appendix to the brief. App., infra, 
1a-2a. 

STATEMENT 

1. The supplemental jurisdiction statute, 28 U.S.C. 
1367, authorizes federal district courts to exercise juris- 
diction over pendent state-law claims—i.e., claims that 
would not, standing alone, come within a district court’s 
original jurisdiction, but that “are so related to” claims 
within the court’s original jurisdiction “that they form 
part of the same case or controversy under Article III 
of the United States Constitution.” 28 U.S.C. 1367(a). 
The statute generally tolls the limitations period for 
such claims while they are pending in federal court and 
for 30 days after they are dismissed. See 28 U.S.C. 
1367(d). This case concerns the application of the 
statute—and, specifically, its tolling provision—to 
state-law claims against a nonconsenting state defen- 
dant. 

Congress enacted the supplemental jurisdiction 
statute as part of the Judicial Improvements Act of 
1990, Pub. L. No. 101-650, 104 Stat. 5089, to codify the 
common-law doctrines of pendent and ancillary jurisdic- 
tion. See H.R. Rep. No. 734 (House Report), 101st 
Cong., 2d Sess. 27-29 (1990); City of Chicago v. Inter- 
national Coll. of Surgeons, 522 U.S. 156, 165 (1997). In 
United Mine Workers of America v. Gibbs, 383 U.S. 715 
(1966), the Court had held that district courts, when 

3 

adjudicating federal-law claims within their subject- 
matter jurisdiction under 28 U.S.C. 1331, also may 
adjudicate state-law claims over which they would not 
otherwise have jurisdiction, if the federal-law and state- 
law claims “derive from a common nucleus of operative 
fact” and thus comprise “but one constitutional ‘case’ ” 
under Article III. 383 U.S. at 725. 

In a series of decisions after Gibbs, the Court identi- 
fied various limits on a district court’s ability to adjudi- 
cate claims that, although not independently within its 
subject-matter jurisdiction, are related to claims within 
its jurisdiction. See, e.g., Aldinger v. Howard, 427 U.S. 
1 (1976); Owen Equip. & Erection Co. v. Kroger, 437 
U.S. 365 (1978). In Finley v. United States, 490 U.S. 
545 (1989), the Court held that a district court could not, 
in the absence of congressional authorization, exercise 
jurisdiction over pendent parties, i.e., parties that are 
not the subject of any claim independently within the 
district court’s jurisdiction. 

Against that backdrop, the Federal Courts Study 
Committee recommended that “Congress expressly 
authorize federal courts to hear any claim arising out of 
the same ‘transaction or occurrence’ as a claim within 
federal jurisdiction, including claims, within federal 
question jurisdiction, that require the joinder of addi- 
tional parties.” Report of the Federal Courts Study 
Committee 47 (Apr. 2, 1990). See also Federal Courts 
Study Committee Implementation Act and Civil Jus- 
tice Reform Act: Hearing Before the Subcomm. on 
Courts, Intellectual Property, and the Administration 
of Justice of the House Comm. on the Judiciary (House 
Hearing), 101st Cong., 2d Sess. 155-56 (1990) (state- 
ment of Judge Deanell R. Tacha, Chairman, Judicial 
Conference Committee On The Judicial Branch, ex- 
pressing support for supplemental jurisdiction legisla- 

4 

tion); id. at 686 (letter from Professor Arthur D. Wolf 
noting academic support for such legislation). Congress 
responded by enacting 28 U.S.C. 1367, which generally 
codified the doctrine of pendent jurisdiction that was 
recognized in Gibbs and provided the congressional 
authorization that the Court found lacking in Finley by 
expressly permitting pendent party jurisdiction. See 
Arthur D. Wolf, Codification of Supplemental Juris- 
diction: Anatomy of a Legislative Proposal, 14 W. New 
Eng. L. Rev. 1 (1992). 

Section 1367 states, in relevant part: 

(a) Except as provided in subsections (b) and (c) or 
as expressly provided otherwise by Federal statute, 
in any civil action of which the district courts have 
original jurisdiction, the district courts shall have 
supplemental jurisdiction over all other claims that 
are so related to claims in the action within such 
original jurisdiction that they form part of the same 
case or controversy under Article III of the United 
States Constitution. Such supplemental jurisdiction 
shall include claims that involve the joinder or 
intervention of additional parties. 

* * * * * 

(c) The district courts may decline to exercise 
supplemental jurisdiction over a claim under 
subsection (a) if— 

(1) the claim raises a novel or complex issue 
of State law. 

(2) the claim substantially predominates over 
the claim or claims over which the district 
court has original jurisdiction, 

5 

(3) the district court has dismissed all claims 
over which it has original jurisdiction, or 

(4) in exceptional circumstances, there are 
other compelling reasons for declining 
jurisdiction. 

(d) The period of limitations 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. 

* * * * * 

28 U.S.C. 1367. 

2. In August 1995, petitioners filed charges with the 
Equal Employment Opportunity Commission (EEOC), 
alleging that the University of Minnesota discriminated 
against them in employment on the basis of age. The 
EEOC, pursuant to a work-sharing agreement, cross- 
filed the charges with the Minnesota Department of 
Human Rights (MDHR). Pet. Br. 3; Pet. App. A2-A3. 
On June 6, 1996, the EEOC dismissed the charges 
and advised petitioners by letter that they had 90 days 
within which to file an action under the federal Age 
Discrimination in Employment Act of 1967 (ADEA), 29 
U.S.C. 621 et seq. On July 17, 1996, the MDHR likewise 
dismissed the charges and advised petitioners by letter 
that they had 45 days within which to file an action in 
state court under the Minnesota Human Rights Act 
(MHRA), Minn. Stat. ch. 363 (1991). Pet. Br. 3; Pet. 
App. A3. 

6 

Forty-four days later, on August 30, 1996, petitioners 
filed suit in federal district court, alleging violations of 
both the ADEA and the MHRA by the Regents of the 
University of Minnesota. Pet. Br. 4; Pet. 3-4. The 
Regents moved to dismiss both the federal-law and 
state-law claims on Eleventh Amendment grounds. 
Pet. Br. 4-5; Pet. App. A18. 

On July 11, 1997, the district court granted the 
motion to dismiss. Pet. Br. 6; Pet. App. A3, A50. Peti- 
tioners appealed the dismissal of their ADEA claims to 
the Eighth Circuit. The appeal was stayed pending the 
disposition by the Eighth Circuit, and subsequently this 
Court, of other cases concerning the validity of Con- 
gress’s abrogation of the States’ Eleventh Amendment 
immunity from private suits under the ADEA. Pet. Br. 
6; Pet. App. A3. Petitioners dismissed their appeal 
after this Court held, in Kimel v. Florida Board of 
Regents, 528 U.S. 62 (2000), that the ADEA does not 
validly abrogate the States’ Eleventh Amendment im- 
munity. Pet. Br. 6-7; Pet. App. A3. 

3. a. On July 31, 1997, while the appeal of the dis- 
misal of their ADEA claims was pending in the Eighth 
Circuit, petitioners filed this action in state court, 
alleging age discrimination by the Regents in violation 
of the MHRA. Pet. Br. 7; Pet. App. A3. The action was 
stayed until December 1998. Pet. Br. 7-8. The state 
trial court then lifted the stay to permit the Regents to 
move to dismiss the action on statute of limitations 
grounds. Id. at 8. 

On March 28, 1999, the state trial court granted the 
motion. The court accepted the Regents’ argument 
that petitioners’ MHRA claims were untimely because 
they were not filed within 45 days after petitioners 
received notice that the MDHR had dismissed their 
charges. Pet. App. A28-A32. The court held that 28 

7 

U.S.C. 1367(d) did not apply to toll the statute of limita- 
tions on the MHRA claims, because the federal district 
court never had “original jurisdiction” over petitioners’ 
ADEA claims within the meaning of 28 U.S.C. 1367(a). 
The court noted that the ADEA claims had been dis- 
missed based on the Eleventh Amendment, which the 
court understood to “limit[] the jurisdictional reach of 
the federal courts.” Pet. App. A29-A32. 

The state trial court further concluded that equitable 
tolling was not appropriate as a matter of state law. 
The court reasoned that, wholly apart from the impact 
of the Eleventh Amendment on petitioners’ ADEA 
claims, petitioners should have known from this Court’s 
decision in Pennhurst State School and Hospital v. 
Halderman, 465 U.S. 89 (1984), that the Eleventh 
Amenment barred the federal courts from adjudicating 
their state-law claims against a state entity. Pet. App. 
A33-A37. 

b. The Minnesota Court of Appeals reversed, hold- 
ing that 28 U.S.C. 1367(d) tolled the statute of limita- 
tions for petitioners’ MHRA claims while those claims 
were pending in federal court. Pet. App. A19-A24. In 
so holding, the court rejected the Regents’ argument 
that Section 1367(d) applies only to pendent state-law 
claims that are dismissed under Section 1367(c) in an 
exercise of the district court’s discretion, and does not 
apply to claims subject to mandatory dismissal under 
the Eleventh Amendment. Id. at A22-A23. In the 
alternative, the court of appeals ruled that the statute 
of limitations on petitioners’ MHRA claims was equita- 
bly tolled while they were pending in federal court. Id. 
at A24-A25. 

c. The Minnesota Supreme Court reversed. Pet. 
App. A2-A15. The court concluded that the application 
of 28 U.S.C. 1367(d) to toll the statute of limitations on 

8 

petitioners’ MHRA claims against the Regents “is an 
unconstitutional infringement on state sovereign immu- 
nity in violation of the Eleventh Amendment.” Pet. 
App. A2. The court, citing Alden v. Maine, 527 U.S. 
706 (1999), reasoned that Congress has no power to 
expand the terms of a State’s waiver of its immunity 
from suit in its own courts. Pet. App. A10-A14. The 
court assumed, without addressing the matter, that 
Section 1367(d) applies to toll the statute of limitations 
on all pendent state-law claims, regardless of the iden- 
tity of the defendant or the ground on which the claim 
was dismissed. The court also reversed the appellate 
court’s equitable tolling ruling. Id. at A14-A15. 

SUMMARY OF ARGUMENT 

The tolling provision of the supplemental jurisdiction 
statute, 28 U.S.C. 1367(d), is properly construed to 
avoid the constitutional question presented in this case 
—viz., whether Congress may, consistent with the 
Eleventh Amendment and the doctrine of sovereign 
immunity, toll the statute of limitations for state-law 
claims asserted in state court against a nonconsenting 
state defendant. Interpreting Section 1367(d) to extend 
the statute of limitations for a state-law claim against a 
nonconsenting state defendant raises significant con- 
stitutional questions. When faced with two possible 
constructions of an Act of Congress, one of which pre- 
sents serious constitutional questions and one of which 
avoids them, this Court adopts the latter construction 
so long as it is not “plainly contrary to the intent of 
Congress.” Edward J. DeBartolo Corp. v. Florida Gulf 
Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 
575 (1988). Two such saving constructions are available 
here. 

9 

I. The supplemental jurisdiction statute, and Sec- 
tion 1367(d) in particular, should be understood as not 
applying to state-law claims asserted against a non- 
consenting state defendant. There is no indication that 
Congress intended the supplemental jurisdiction stat- 
ute to abrogate the States’ immunity from suit in 
federal court on state-law claims. Congress enacted the 
statute against the backdrop of this Court’s decision in 
Pennhurst State School and Hospital v. Halderman 
(Pennhurst II), 465 U.S. 89 (1984), which held that the 
Eleventh Amendment bars the adjudication of such 
claims in federal court. Congress did not expressly 
attempt to reach state-law claims against nonconsent- 
ing States, even though it was aware that, in order to 
abrogate the States’ sovereign immunity, it must make 
its intent “unmistakably clear in the language of the 
statute.” Dellmuth v. Muth, 491 U.S. 223, 228 (1989). 
There is no more reason to conclude that Congress 
intended to alter the States’ immunity from suit under 
their own laws in their own courts. Any effort to mod- 
ify the terms of a State’s waiver of sovereign immunity 
in its own courts would be extraordinary and would 
raise serious constitutional concerns. The text of 
Section 1367(d) does not make any specific reference to 
claims against nonconsenting state defendants. Nor 
does the legislative record evince any intent by any 
member of Congress to apply the tolling rule to such 
claims. In light of Congress’s silence, there is no reason 
to interpret Section 1367(d) in a counterintuitive and 
constitutionally provocative manner. Instead, this 
Court should construe Section 1367(d), in accordance 
with the canon of constitutional avoidance, as not apply- 
ing to claims against nonconsenting state defendants. 

II. Alternatively, Section 1367(d) should be under- 
stood to toll the limitations period only for pendent 

10 

state-law claims that are dismissed by the district court 
on grounds specified in the supplemental jurisdiction 
statute—for example, because “the claim raises a novel 
or complex issue of State law” or “the district court has 
dismissed all claims over which it has original jurisdic- 
tion,” 28 U.S.C. 1367(c)(1) and (3). Section 1367(d) 
therefore does not apply to state-law claims that are 
dismissed for reasons independent of the supplemental 
jurisdiction statute, such as a lack of personal juris- 
diction, inadequate service of process, failure to prose- 
cute, or, as here, Eleventh Amendment immunity. 

Such a construction of Section 1367(d) is consistent 
with the general statutory language, finds support in 
the legislative record, and limits the tolling rule to 
applications that further the goals of the supplemental 
jurisdiction statute. The congressional report accom- 
panying the statute describes Section 1367(d) as apply- 
ing only to claims dismissed “under this section.” That 
restriction was expressly included in the text of Section 
1367(d), as originally introduced, and does not appear to 
have been deleted for any substantive reason. Most 
commentators and courts agree that Section 1367(d) 
applies only to state-law claims that are dismissed for 
reasons specified in the supplemental jurisdiction 
statute, and not to claims that are dismissed on grounds 
unrelated to the statute, such as Eleventh Amendment 
immunity. Limiting the reach of Section 1367(d) to 
claims dismissed on the grounds specified in the statute 
avoids the constitutional difficulties identified by the 
Minnesota Supreme Court while promoting the proper 
functioning of the statute. 

ARGUMENT 

The Minnesota Supreme Court held that 28 U.S.C. 
1367(d) is unconstitutional insofar as it tolls the statute 

11 

of limitations for state-law claims against state defen- 
dants. In reaching that conclusion, the Minnesota 
Supreme Court assumed that Section 1367(d) applies to 
every claim as to which the supplemental jurisdiction 
statute is invoked, without regard for whether the 
defendant is a State, as opposed to a private party, or 
whether the claim was dismissed on grounds specified 
in the statute, as opposed to other grounds. It made 
that assumption even though, in its view, such a 
construction rendered the statute unconstitutional. It 
thus failed to apply the “cardinal principle of statutory 
interpretation * * * that when an Act of Congress 
raises a serious doubt as to its constitutionality,” courts 
should “first ascertain whether a construction of the 
statute is fairly possible by which the question may be 
avoided.” Zadvydas v. Davis, 121 S. Ct. 2491, 2498 
(2001) (internal quotation marks and brackets omitted); 
accord, e.g., Public Citizen v. United States Dep’t of 
Justice, 491 U.S. 440, 465-466 (1989); Edward J. 
DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. 
Trades Council, 485 U.S. 568, 575 (1988) (“[W]here an 
otherwise acceptable construction of a statute would 
raise serious constitutional problems, the Court will 
construe the statute to avoid such problems unless such 
construction is plainly contrary to the intent of Con- 
gress.”); Ashwander v. Tennessee Valley Auth., 297 
U.S. 288, 346-348 (1936) (Brandeis, J., concurring). 
Such a construction is, at a minimum, “fairly possible” 
here. Indeed, there is ample reason to conclude that 
Congress did not intend Section 1367(d) to toll the 
statute of limitations on state-law claims in the circum- 
stances of this case.1 

1 The canon of constitutional avoidance applies both when a 
statute raises serious constitutional questions in all applications 

12 

I. SECTION 1367, AND SECTION 1367(d) IN PAR- 
TICULAR, SHOULD BE UNDERSTOOD NOT TO 
APPLY TO STATE-LAW CLAIMS AGAINST NON- 
CONSENTING STATE DEFENDANTS 

Nothing in Section 1367 explicitly makes its provi- 
sions applicable to efforts to bring state-law claims 
against nonconsenting state defendants. Section 1367(a) 
provides a general grant of jurisdiction over state-law 
claims “that are so related to claims in the action within 
[the district courts’] original jurisdiction that they form 
part of the same case or controversy.” 28 U.S.C. 
1367(a). Section 1367(d) provides, in pertinent part, 
that “[t]he period of limitations for any claim asserted 
under subsection (a) * * * shall be tolled while the 
claim is pending and for a period of 30 days after it is 
dismissed.” 28 U.S.C. 1367(d). Neither provision ex- 
cludes, in so many words, state-law claims against non- 
consenting state defendants. But both provisions 
should be construed, in accordance with the canon of 
constitutional avoidance, not to apply to such claims. 

A. Interpreting Section 1367 To Apply To Noncon- 
senting States Raises Serious Constitutional 
Questions 

Interpreting Section 1367 to apply to claims against 
non-consenting state defendants raises various consti- 
tutional difficulties. In the first place, if Section 
1367(a)’s general grant of jurisdiction were read to 
authorize federal courts to adjudicate state-law claims 
against nonconsenting state defendants, that provision 
would violate this Court’s constitutional holding in 
Pennhurst II. That decision explicitly held that the 

and, as here, when it raises such questions only in certain applic- 
tions. See, e.g., Public Citizen, 491 U.S. at 465-467. 

13 

Eleventh Amendment’s “constitutional bar” to suits 
against nonconsenting States “applies to pendent 
claims.” 465 U.S. at 120. 

An interpretation of Section 1367(d) that would apply 
to nonconsenting state defendants likewise raises 
serious constitutional difficulties. In Alden v. Maine, 
527 U.S. 706 (1999), this Court held that sovereign im- 
munity principles inherent in the constitutional scheme 
prevent Congress, in the exercise of its Article I 
powers, from authorizing private suits against noncon- 
senting States in their own courts. Indeed, the Court 
explained that “a congressional power to authorize 
private suits against nonconsenting States in their own 
courts would be even more offensive to state sover- 
eignty than a power to authorize the suits in a federal 
forum,” because “the immunity of a sovereign in its own 
courts has always been understood to be within the sole 
control of the sovereign itself.” Id. at 749; cf. Seminole 
Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996) 
(holding that Congress, in the exercise of its Article I 
powers, cannot authorize private suits against non- 
consenting States in federal court). 

Congress would seem to interfere with a State’s “sole 
control” over its immunity from suit in its own courts 
not only where, as in Alden, Congress authorizes a 
claim as to which a State has not waived its immunity 
at all, but also where Congress purports to expand the 
scope of a State’s waiver of immunity. The latter may 
include Congress’s expansion of the limitations period 
for claims against a State beyond the limitations period 
to which the State has consented. At a minimum, the 
question whether Congress may extend the limitations 
period for suits against a State in its own courts is a 

14 

serious one, which the Court should avoid reaching if 
possible.2 

B. Interpreting Section 1367 As Inapplicable To 

Nonconsenting States Is Consistent With Con- 
gressional Intent And Avoids Constitutional 
Difficulties 

A construction of Section 1367, and Section 1367(d) in 
particular, that excludes claims against nonconsenting 
state defendants cannot be said to be “plainly contrary 
to the intent of Congress.” DeBartolo, 485 U.S. at 575. 
There is no indication in the statutory text or the 
legislative record that Congress intended Section 
1367(d) to toll the limitations period for such claims. To 
the contrary, Section 1367, as a whole, suggests that 
Congress intended to respect, not to challenge, the 
States’ sovereign immunity. 

Congress enacted the Judicial Improvements Act of 
1990, of which the supplemental jurisdiction statute was 
a part, against the backdrop of this Court’s sovereign 
immunity jurisprudence. The Court had made clear six 
years earlier in Pennhurst II that the Eleventh 
Amendment bars federal district courts from exercising 
pendent jurisdiction over state-law claims against 

2 This Court has characterized the limitations period in an Act 
of Congress authorizing suits against the United States as “a 
central condition” of the United States’ waiver of sovereign immu- 
nity. United States v. Mottaz, 476 U.S. 834, 843 (1986); see United 
States v. Williams, 514 U.S. 527, 534 n.7 (1995) (noting that such 
limitations periods operate to “narrow the waiver of sovereign 
immunity”); cf. Henderson v. United States, 517 U.S. 654, 677 
(1996) (Thomas, J., dissenting) (“[W]e have long held that a statute 
of limitations attached to a waiver of sovereign immunity functions 
as a condition on the waiver and defines the limits of the district 
court’s jurisdiction to hear a claim against the United States.”) 
(citing cases). 

15 

nonconsenting state defendants. Nothing in its text or 
legislative history suggests that Section 1367 was 
designed to attempt to overrule Pennhurst II. Indeed, 
although an early draft of a supplemental jurisdiction 
legislation contained a provision that purported to 
overrule Pennhurst II, that provision was not included 
in the legislation as introduced. See Arthur D. Wolf, 
Codification of Supplemental Jurisdiction: Anatomy of 
a Legislative Proposal, 14 W. New Eng. L. Rev. 1, 48 
(1992) (noting that “constitutional objections” had been 
raised to the provision); see also id. at 53 (text of 
provision). 

As a general matter, even where Congress may con- 
stitutionally abrogate state sovereign immunity, Con- 
gress must “mak[e] its intention unmistakably clear in 
the language of the statute.” Dellmuth v. Muth, 491 
U.S. 223, 228 (1989). Section 1367 contains no such 
language.3 Although the general jurisdictional grant in 
Section 1367(a) could be read to include claims against 
nonconsenting States, this Court has expressly warned 
against interpreting general grants of jurisdiction as 
congressional efforts to abrogate state sovereign immu- 
nity. See e.g., Blatchford v. Native Vill. of Noatak, 501 
U.S. 775 (1991); Delmuth, 491 U.S. at 231; Atascadero 
State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985). In 

3 To the contrary, Section 1367(a) specifies that it does not 
purport to create jurisdiction where it would conflict with the 
terms of another federal statute. See 28 U.S.C. 1367(a) (conferring 
jurisdiction over pendent claims, “[e]xcept as * * * expressly 
provided otherwise by Federal statute”). It is hard to conceive 
that the same Congress that declined to assert jurisdiction where 
it would conflict with a federal statute simultaneously would pur- 
port to assert jurisdiction where it would conflict with the Elev- 
enth Amendment and sovereign immunity principles of the 
Constitution. 

16 

Blatchford, the Court declined to read a general grant 
of jurisdiction over suits brought by Indian tribes, 28 
U.S.C. 1362, to apply to suits against nonconsenting 
States. What the Court said about Section 1362 in 
Blatchford applies with equal force to Section 1367(a): 
“the text is no more specific than § 1331, the grant of 
general federal-question jurisdiction to district courts, 
and no one contends that § 1331 suffices to abrogate 
immunity for all federal questions.” 501 U.S. at 786. 
The better reading of a general jurisdictional grant, like 
Section 1367(a), is that it permits suits against a State 
where the State has waived immunity, or where Con- 
gress has elsewhere expressly abrogated that immu- 
nity, but does not permit suits against States in other 
circumstances. See id. at 786 n.4. 

There is no more reason to conclude that Congress 
intended in Section 1367(d) to alter the scope of a 
nonconsenting State’s immunity from state-law claims 
in state court than to conclude that Congress intended 
in Section 1367(a) to alter the scope of a nonconsenting 
State’s immunity from state-law claims in federal court. 
The better reading is that Section 1367, in its entirety, 
has no application to nonconsenting States. The text of 
Section 1367(d) speaks generally of “any claim asserted 
under subsection (a),” and thus, like Section 1367(a), 
does not expressly apply to claims against nonconsent- 
ing state defendants. Nor is there any indication in the 
legislative record that any member of Congress 
understood Section 1367(d) to toll the limitations period 
for claims against such defendants.4 

4 The supplemental jurisdiction legislation is discussed in only 
one congressional committee report and in the record of only one 
congressional hearing. It was not the subject of any debate on the 

17 

Indeed, Congress may well have assumed, in light of 
Pennhurst II and Section 1367(a)’s inapplicability to 
nonconsenting States, that no plaintiff would ever have 
an occasion to contend that Section 1367(d) applies to 
state-law claims brought against nonconsenting States. 
In view of this Court’s holding in Pennhurst II that the 
Eleventh Amendment bars the adjudication of state- 
law claims against nonconsenting state defendants in 
federal court, Congress may have expected that plain- 
tiffs would understand that such claims may be 
asserted, if at all, only in state court, and not in federal 
court under the supplemental jurisdiction statute. See 
Pet. App. A14 (affirming the state trial court’s refusal 
to toll the limitations period on the state-law claims on 
equitable grounds because “under Pennhurst [II] it 
was clear the federal district court could not exercise 
jurisdiction over the supplemental MHRA claims”).5 

As is true of Section 1367(a), the general text of Sec- 
tion 1367(d) is sufficiently broad that it could be read to 
apply to nonconsenting States. In particular, it is 
possible to construe Section 1367(d) to extend the state 
statute of limitations against a nonconsenting state 
defendant in state court even when, as is the case here, 
the State has not consented to federal-court jurisdiction 
over the state-law claims and so Section 1367(a), prop- 
erly understood, does not apply. But such an effort to 
modify the terms of a State’s consent to suit in state 

floor of the House or Senate during the consideration of the Judi- 
cial Improvements Act of 1990. 

5 Indeed, the assertion of federal power to extend the state 
statute of limitations against a nonconsenting state defendant 
would be particularly inappropriate in this case. Here, the federal 
courts lacked jurisdiction not only over the pendent state-law 
claims against respondents under Pennhurst II, but also, as Kimel 
made clear, over the federal claims. 

18 

court would be extraordinary and raise serious consti- 
tutional questions. Even if such interference with 
“state sovereign immunity is theoretically possible, 
there is no reason to believe that Congress ever con- 
templated such a strange notion.” Blatchford, 501 U.S. 
at 785-786. The same factors that have made courts 
reluctant to infer a congressional intent to override 
States’ immunity from suit in federal court counsel 
against inferring a congressional intent to override 
States’ immunity from suit in state court. Section 1367 
should thus be construed as having no application to 
nonconsenting States in order to avoid Eleventh 
Amendment and other sovereign immunity problems. 

A state defendant may, of course, consent to a dis- 
trict court’s exercise of supplemental jurisdiction over 
state-law claims, which may encompass consent to the 
tolling rule of Section 1367(d). Cf. Blatchford, 501 U.S. 
at 786 n.4. For example, where a district court has 
original jurisdiction over a claim as to which a State’s 
immunity has validly been abrogated (e.g., a claim 
under Title VII of the Civil Rights Act of 1964), the 
State may decide for reasons of efficiency to consent to 
supplemental jurisdiction over a closely related state- 
law claim. And, even if the State subsequently revokes 
its consent, and thereby forces the plaintiff to refile the 
state-law claim in state court, the revocation may not 
apply retroactively; Section 1367(d) may toll the limita- 
tions period for the period during which the case 
remained in district court with the State’s consent. 
Absent the State’s initial consent to the exercise of 
supplemental jurisdiction, however, Section 1367(d) 
should not be understood to apply to such claims. 

In sum, Section 1367(d) may reasonably be construed, 
without conflicting with any expression of congressional 
intent, as not applying to state-law claims against non- 

19 

consenting state defendants. The Court should adopt 
such a construction of Section 1367(d), as opposed to the 
construction assumed by the Minnesota Supreme 
Court, in order to avoid serious constitutional doubts as 
to whether Congress may toll the statute of limitations 
on state-law claims against nonconsenting state defen- 
dants in state court. 

II. SECTION 1367(d) DOES NOT APPLY TO STATE- 
LAW CLAIMS THAT ARE DISMISSED FOR 
REASONS UNRELATED TO THE TERMS OF THE 
SUPPLEMENTAL JURISDICTION STATUTE 

Section 1367(d) may also be understood to apply only 
to state-law claims that are dismissed on grounds 
specified in the supplemental jurisdiction statute, and 
thus not to claims dismissed on other grounds, such as 
Eleventh Amendment immunity. That alternative con- 
struction of Section 1367(d) likewise would enable the 
Court to avoid reaching the constitutional question in 
this case. 

A. The Text, Legislative Record, And Underlying 

Purpose Of The Supplemental Jurisdiction 
Statute Support A Narrow Reading Of Section 
1367(d) 

As noted above, Section 1367(d), in general terms, 
tolls the limitations period “for any claim asserted 
under subsection (a).” Section 1367(d) thus does not 
expressly confine its tolling rule to claims that are 
dismissed on the grounds stated in the supplemental 
jurisdiction statute. But, in light of the canon of 
constitutional avoidance, Section 1367(d) may fairly be 
construed to contain that limitation. Such a construc- 
tion comports with the statutory text, finds support in 
the legislative record, and serves distinct congressional 
purposes. 

20 

First, the statutory text is compatible with the view 
that Section 1367(d) addresses the unique difficulties 
that arise when claims are dismissed on the grounds 
specified in the supplemental jurisdiction statute. Sec- 
tion 1367(d), notwithstanding its reference to “any 
claim,” does not reach every claim asserted under 
Section 1367(a) that is dismissed for any reason. For 
example, if a district court dismisses a claim on the 
merits, the tolling rule clearly has no application. 
Professors Arthur Wolf and John Egnal, who assisted 
in drafting the supplemental jurisdiction statute (see 
House Report 27 n.13), made that point expressly in a 
submission for the record of a congressional hearing on 
the statute. “Of course,” they explained, “if the court 
dismisses the non-federal claim on the merits, this 
subsection [i.e., the tolling provision] is not intended to 
give the pleader a second chance that the pleader would 
not ordinarily have under state law.” House Hearing 
695, 697. Accordingly, Section 1367(d) does not reach 
every claim that its general terms might be construed 
to reach, and is clearly susceptible to a narrowing 
construction. 

Second, the legislative record affirmatively indicates 
that Congress did not intend to toll the limitations 
period for pendent state-law claims that are dismissed 
for reasons unrelated to the supplemental jurisdiction 
statute. Instead, Congress contemplated that Section 
1367(d) would apply only to claims dismissed under that 
statute.6 

6 Whatever value legislative history has an interpretative tool 
as a general matter, it is clearly useful in confirming the general 
presumption, reflected in Ashwander and its progeny, that Con- 
gress legislates within constitutional limits. See, e.g., Benoni v. 
Boston and Maine Corp., 828 F.2d 52, 57 (1st Cir. 1987) (noting 
that consideration of “legislative history is not only appropriate, 

21 

As originally drafted and introduced in the 101st 
Congress, H.R. 5381, the legislation that contained the 
supplemental jurisdiction statute, tolled the limitations 
period for a pendent claim (there referred to as a “non- 
Federal claim”) while the claim was pending in district 
court and for 30 days “after it is dismissed under 
subsection (c).” House Hearing 30 (quoting H.R. 5381, 
101st Cong., 2d Sess. § 120(a) (1990)) (emphasis added). 
Subsection (c), in turn, directed that a district court 
“shall dismiss or remand the non-Federal claim if it is 
not a permissible claim under subsection (a),” e.g., if the 
non-federal claim does not “arise out of the same trans- 
action or occurrence or series of transactions or 
occurrences” as the federal claim. Id. at 29, 30 
(emphasis added). Subsection (c) further directed that 
a district court “may dismiss or remand the non- 
Federal claim if * * * (1) the Federal claim is 
dismissed; (2) the non-Federal claim substantially 
predominates over the Federal claim; or (3) the non- 
Federal claim should be tried separately.” Id. at 30 
(emphasis added). No provision was made for the 
tolling of the limitations period in any other circum- 
stance, i.e., where the supplemental claim was 
dismissed for reasons other than those specified in 
subsection (c) (and, by cross-reference, subsection (a)). 
Thus, the tolling provision would have expressly ap- 
plied only to state-law claims that were dismissed 

but mandatory” when it suggests a construction of a statute that 
avoids constitutional questions); see also Securities and Exchange 
Commission v. Wall Street Publishing Inst., Inc., 851 F.2d 365, 
368 n.5 (D.C. Cir. 1988) (relaxing normal rule against considering 
arguments not raised below “in light of our obligation to avoid 
unnecessary adjudication of constitutional claims when a statute’s 
language or legislative history admits of a limiting construction”) 
(emphasis added), cert. denied, 489 U.S. 1066 (1989). 

22 

either as not “permissible” under subsection (a) or for 
the discretionary reasons specified in subsection (c). 

In the version of H.R. 5381 that Congress ultimately 
enacted, Section 1367(d) does not retain the explicit 
reference to claims “dismissed under subsection (c).” 
But nothing in the legislative record suggests that the 
reference was deleted in order to broaden the reach of 
the tolling provision.7 To the contrary, the House 
Report accompanying the final version of H.R. 5381 
confirms that subsection (d) “provides a period of 
tolling of statutes of limitations for any supplemental 
claim that is dismissed under this section.” House 
Report 30 (emphasis added); see also 136 Cong. Rec. 
36,291 (1990) (Sen. Grassley) (submitting identical 
explanation of tolling provision to Senate). The House 
Report thus does not contemplate that Section 1367(d) 
would toll the limitations period if a state-law claim was 
dismissed for reasons unrelated to the terms of the 
supplemental jurisdiction statute. 

Third, this limiting construction of Section 1367(d) 
avoids serious doubt about the provision’s constitution- 
ality, yet permits Section 1367(d) to remedy a specific 
problem that arose in the wake of Gibbs. Specifically, 
this reading of Section 1367(d) allows district courts to 
exercise their discretion to dismiss pendent state-law 
claims that would more appropriately be adjudicated in 
state court, without concern that those claims would be 
time-barred when refiled in state court. 

7 The final version of H.R. 5381 likewise does not retain the 
explicit directive included in the original version of subsection 
(c) that a district court dismiss any state-law claim that “is not a 
permissible claim under subsection (a).” But such a requirement, 
of course, remains implicit in the statute. 

23 

The common-law doctrine of pendent jurisdiction did 
not toll the statute of limitations for pendent state-law 
claims. In Gibbs, this Court emphasized that federal 
courts could exercise jurisdiction over pendent state- 
law claims as a matter “of discretion, not of plaintiff ’s 
right.” United Mine Workers of Am. v. Gibbs, 383 U.S. 
715, 726 (1996). Thus, the Court explained that a 
district court, in the exercise of its discretion, should 
dismiss pendent state-law claims, without prejudice, 
where warranted by considerations of comity, judicial 
economy, convenience, or fairness to litigants. Id. at 
726-727; see id. at 726 (suggesting that dismissal would 
often be appropriate, for example, “if the federal claims 
are dismissed before trial” or “if it appears that the 
state issues substantially predominate”). 

The district courts’ consideration of those factors 
often was skewed, however, by the concern that, if the 
court exercised discretion to dismiss a state-law claim, 
the claim might be deemed untimely if refiled in state 
court. That concern tended to overwhelm any factors 
that would counsel against retaining jurisdiction over a 
state-law claim. Indeed, several courts of appeals held 
it to be an abuse of discretion for a district court to 
dismiss pendent claims without taking into account 
whether the claim would be time-barred in state court.8 

8 See, e.g., Giardiello v. Balboa Ins. Co., 837 F.2d 1566, 1571 
(11th Cir. 1988); Cooley v. Pennsylvania Hous. Fin. Agency, 830 
F.2d 469, 476 (3d Cir. 1987); Henson v. Columbus Bank & Trust 
Co., 651 F.2d 320, 325 (5th Cir. 1981) (per curiam); O’Brien v. 
Continental Ill. Nat. Bank & Trust Co., 593 F.2d 54, 64-65 (7th 
Cir. 1979). Some courts made a discretionary dismissal of pendent 
claims contingent upon the defendant’s waiver of any applicable 
statute of limitations defense. See, e.g., Edwards v. Okaloosa 
County, 5 F.3d 1431, 1435 n.3 (11th Cir. 1993); Duckworth v. 
Franzen, 780 F.2d 645, 657 (7th Cir. 1985), cert. denied, 479 U.S. 

24 

This Court expressed similar concerns in addressing 
the related question whether district courts could 
remand to state court, rather than dismiss, pendent 
state-law claims in cases originally filed in state court 
and then removed to federal court. The Court 
concluded that “a remand generally will be preferable 
to a dismissal when the statute of limitations on the 
plaintiff ’s state-law claims has expired before the 
federal court has determined that it should relinquish 
jurisdiction over the case.” Carnegie-Mellon Univ. v. 
Cohill, 484 U.S. 343, 351-352 (1988). In such a case, the 
Court observed, dismissal “may work injustice to the 
plaintiff,” because “a dismissal will foreclose the plain- 
tiff from litigating his claims.” Id. at 352.9 As a conse- 
quence of concerns about leaving plaintiffs without a 
state-law remedy, the district courts would retain 
jurisdiction over cases that, apart from those concerns, 
properly belonged in state court. Id. at 352 n.10. 

10 

816 (1986); Financial Gen. Bankshares, Inc. v. Metzger, 680 F.2d 

768, 778 (D.C. Cir. 1982). 

9 Congress subsequently enacted legislation to make a remand 
mandatory, rather than discretionary, when, as in Cohill, subse- 
quent events deprive the district court of subject-matter juris- 
diction. See 28 U.S.C. 1447 (1994 & Supp. V 1999). 

10 A subcommittee of the Federal Courts Study Committee, 
after examining the practice of the district courts under Gibbs, 
noted that “most courts retain jurisdiction over state claims re- 
gardless of their complexity, novelty, or predominance,” except 
where all federal claims were dismissed before trial. 1 Federal 
Courts Study Committee, Working Papers and Subcommittee 
Reports (Report of the Subcommittee on the Role of the Federal 
Courts and Their Relationship to the States) 561-562 (July 1, 1990). 
The subcommittee recommended that any supplemental jurisdic- 
tion statute direct the district courts to dismiss state-law claims in 
all of those circumstances. Id. at 562. Neither the recommenda- 
tion of the Federal Courts Study Committee nor the draft statute 

25 

The proponents of the supplemental jurisdiction 
legislation expressed related concerns about the district 
courts’ retaining pendent claims that might more 
appropriately be adjudicated in state court. For 
example, Judge Joseph F. Weis, Jr., the chairman of the 
Federal Courts Study Committee, urged Congress that 
“supplemental jurisdiction not be used to let the tail [of 
a federal-law claim] wag the dog [of a case in which 
state-law claims predominate].” House Hearing 95. 
“Thus,” said Judge Weis, “when a state claim predomi- 
nates, the district court should be authorized and en- 
couraged to decline the exercise of supplemental 
jurisdiction,” because “[t]o proceed in the face of state 
claim predominance would be an affront by a district 
court to considerations of comity and federalism.” Ibid. 

Section 1367(d) allows district courts to assess 
whether to retain jurisdiction over state-law claims free 
from concerns about whether the claims, if dismissed, 
could be timely filed in state court. It, therefore, 
eliminates the incentive for district courts to retain 
jurisdiction over state-law claims that, for reasons of 
comity or otherwise, are better suited for adjudication 
in state court. See John B. Oakley, Prospectus for the 
American Law Institute’s Federal Judicial Code 
Revision Project, 31 U.C. Davis L. Rev. 855, 945 (1998) 
(“Congress clearly intended subsection 1367(d) to facili- 
tate discretionary dismissal under subsection 1367(c) by 
relieving courts of concerns about the inequitable 
consequences of state limitations law barring the dis- 

prepared by its Subcommittee on the Role of the Federal Courts 
specifically addressed the tolling of the statute of limitations for 
state-law claims. The tolling provision was contained in the draft 
supplemental jurisdiction legislation submitted to Congress by 
Professors Wolf and Egnal. See House Hearing 686-687. 

26 

missed claim from refiling.”). No comparable purpose is 
served by giving the benefit of tolling under Section 
1367(d) to a plaintiff whose state-law claim is dismissed 
for mandatory reasons unrelated to the supplemental 
jurisdiction statute, such as lack of personal jurisdic- 
tion, improper service, failure to state a claim, or 
Eleventh Amendment immunity. 

11 

Finally, as noted, a construction of Section 1367(d) 
that limits tolling to claims dismissed under the sup- 
plemental jurisdiction statute avoids the serious consti- 
tutional questions raised by a construction that would 
allow tolling for claims dismissed on Eleventh Amend- 
ment grounds. Indeed, apart from the special concerns 
raised by a construction that could apply Section 
1367(d) to expand the scope of a State’s waiver of 
sovereign immunity, there are reasons to favor a 
narrow construction. Even in cases involving only 
private litigants, “States have an interest in the prompt 
and efficient resolution of controversies based on state 
law.” Cohill, 484 U.S. at 353. While tolling the state 
limitations period is justified in aid of federal court 
jurisdiction to address the unique problems created by 
pendent jurisdiction, there is less justification for 
tolling the state limitations period when the state-law 
claims are dismissed for defects having nothing to do 
with the supplemental jurisdiction statute. In light of 
the legislative record and the fact that Section 1367(d) 
accomplishes its key purposes even if limited to claims 

11 Statute of limitations concerns figure prominently in cases 
involving pendent claims, because the district court is required to 
consider whether to retain discretionary jurisdiction over pendent 
claims “throughout the litigation.” Cohill, 484 U.S. at 351; see also 
Gibbs, 383 U.S. at 727. Dismissals on grounds not related to the 
supplemental jurisdiction statute, by contrast, are often the result 
of threshold inquiries that involve no element of discretion. 

27 

dismissed under the statute, there is no reason to adopt 
a broad and constitutionally problematic construction of 
Section 1367(d). 

B. Most Courts And Commentators Have Read 

Section 1367(d) Narrowly 

Wholly apart from any concern for avoiding difficult 
constitutional questions, most commentators view 
Section 1367(d) as not applying to pendent state-law 
claims that are dismissed for reasons unrelated to the 
terms of the supplemental jurisdiction statute. At least 
two courts have also expressed that view. 

Some commentators have interpreted Section 1367(d) 
to apply only to state-law claims that are dismissed for 
the discretionary reasons stated in Section 1367(c). For 
example, one leading treatise, after acknowledging that 
“in this respect, as in others, § 1367 could have been 
more clearly drafted,” concludes that “the tolling pro- 
vision of (d) should be read as coming into play only if 
the court exercises its discretion, under § 1367(c), to 
dismiss a supplemental claim of which it has jurisdiction 
under subsection (a).” 13B Charles A. Wright et al., 
Federal Practice and Procedure § 3567.1, at 46 n.51 
(Supp. 2001). Thus, if a district court “dismisses a claim 
because that claim is not properly within the court’s 
jurisdiction, § 1367(d) should have no[] application.” 
Ibid. Similarly, Professor John B. Oakley observes 
that, although the text of Section 1367(d) creates some 
“uncertainty” as to its reach, a “close reading of the 
legislative history conclusively supports” construing 
Section 1367(d) to apply “only to ‘any claim properly 
asserted under subsection (a)’ that the district court 
dismissed not for lack of supplemental jurisdiction, but 
rather because the district court elected not to exercise 
supplemental jurisdiction for one of the discretionary 

28 

reasons permitted by subsection 1367(c).” Oakley, 
supra, 31 U.C. Davis L. Rev. at 945; see also 16 Moore’s 
Federal Practice § 106.66[3][c] (3d ed. June 2001) 
(“Under Section 1367, if the claim is validly within the 
court’s supplemental jurisdiction under subsection 
(a), the period of limitations is 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.”) 
(emphasis added). The American Law Institute (ALI) 
shares the view that Section 1367(d) “tolls the period of 
limitations only as to supplemental claims dismissed 
discretionarily because the district court declines to 
exercise supplemental jurisdiction.” Federal Judicial 
Code Revision Project, Tentative Draft No. 2, at 99 
(1998) (approved at the ALI’s annual meeting on May 
14, 1998). 

12 

Two courts have also concluded that Section 1367(d) 
applies only to state-law claims dismissed for one of the 
reasons stated in Section 1367(c). See Ovadia v. Bloom, 
756 So. 2d 137, 139 (Fla. Dist. Ct. App. 2000) (Section 
1367(d) does not apply when the federal action was 
dismissed for lack of complete diversity); Parrish v. 
HBO & Co., 85 F. Supp. 2d 792, 796-797 (S.D. Ohio 1999) 
(Section 1367(d) applies only to claims dismissed under 
Section 1367(c)). 

12 The ALI has drafted a revised supplemental jurisdiction 
statute that would, among other things, “expand[]” the tolling 
provision “to embrace supplemental claims dismissed because the 
district court lacks subject-matter jurisdiction as well as supple- 
mental claims dismissed because the district court has declined to 
exercise its supplemental jurisdiction.” Federal Judicial Code 
Revision Project, Tentative Draft No. 2, at 98-99; see id. at 98 
(draft legislation providing for tolling of limitations period for “any 
supplemental claim dismissed because the district court lacks or 
declines to exercise supplemental jurisdiction”). 

29 

Some commentators have concluded that Section 
1367(d) tolls the limitation period not only for pendent 
state-law claims dismissed on the discretionary grounds 
provided in Section 1367(c), but also for pendent claims 
dismissed because the prerequisites of Section 1367(a) 
or (b) have not been met. In their view, the tolling 
provision would apply to a pendent claim that was 
dismissed because, for example, the pendent claim 
was not sufficiently related to a claim over which 
the court has original jurisdiction. See, e.g., Denis F. 
McLaughlin, The Federal Supplemental Jurisdiction 
Statute—A Constitutional and Statutory Analysis, 24 
Ariz. St. L.J. 849, 985 (1992) (“[I]t would appear that 
the intent of the drafters was to extend tolling protec- 
tion to a dismissed supplemental claim, but only when 
the dismissal results from the failure of the claim to 
satisfy one of the supplemental jurisdictional require- 
ments of § 1367(a)-(c) and not because of some other 
defect.”). 

The majority view, however, and perhaps the better 
one, is that Section 1367(d) tolls the limitations period 
only for claims dismissed for the discretionary reasons 
set forth in Section 1367(c). But the Court need not 
definitively resolve that question because, whether or 
not Section 1367(d) applies to dismissals under Section 
1367(c) alone or to dismissals for failure to meet the 
prerequisites of Section 1367(a) and (b) as well, it does 
not apply to pendent claims, such as those here, that are 
dismissed for independent reasons. 

13 

13 We are not aware of any decision, other than the decision of 
the Minnesota Court of Appeals in this case, holding that Section 
1367(d) applies to state-law claims that are dismissed for reasons 
unrelated to the terms of the supplemental jurisdiction statute. 
But see Stevens v. ARCO Management of Washington D.C., Inc., 
751 A.2d 995, 997-1002 (D.C. 2000) (endorsing, in dicta, the reason- 

30 

C. A Narrow Construction Of Section 1367(d) 

Does Not Foreclose The Application Of State 
Tolling Rules To State-Law Claims 

An interpretation of the tolling provision that en- 
compasses only claims dismissed under Section 1367, 
and not claims dismissed under other sources of law, 
does not leave plaintiffs who mistakenly file state-law 
claims in federal court without any possibility of relief 
from the running of a statute of limitations. Such a 
construction simply leaves full responsibility for pro- 
viding such relief with the States. 

It is quite common for state law to provide for the 
tolling of the limitations period for claims that are 
initially filed in the wrong court. See McLaughlin, 
supra, 24 Ariz. St. L.J. at 982-983 (noting that “a num- 
ber of states provide for statutory tolling when an 
action is timely commenced in one court and is there- 
after dismissed without prejudice,” and that “[s]till 
other states have no statutory provision for tolling, but 
permit tolling on a case-by-case basis under the doc- 
trine of equitable tolling”); see also Burnett v. New 
York Cent. R.R., 380 U.S. 424, 431-432 & n.9 (1965) 
(noting state “saving” statutes). Section 1367(d) re- 
flects Congress’s awareness of such state tolling rules. 
See 28 U.S.C. 1367(d) (tolling the statute of limitations 
for 30 days “unless State law provides for a longer 
tolling period”). 

ing of the Minnesota Court of Appeals). A few commentators have 
taken that view. See, e.g., Brian A. Beckcom, Pushing the Limits 
of the Judicial Power: Tolling State Statutes of Limitations Under 
28 U.S.C. § 1367(d), 77 Tex. L. Rev. 1049, 1074 n.168 (1999) 
(“§ 1367(d) would toll state statutes of limitations regardless of the 
reason for dismissal, unless the claim is dismissed on the merits”). 

31 

A State may, of course, decide to apply its own tolling 
provisions to claims dismissed in federal court on 
Eleventh Amendment grounds. Indeed, state tolling 
provisions may provide a degree of protection to 
plaintiffs in some of the circumstances suggested by 
petitioners, such as where a state defendant engages in 
conduct indicating consent to federal court jurisdiction 
over a pendent state-law claim, and then asserts an 
Eleventh Amendment objection after the statute of 
limitations has run on the claim. Such an approach 
allows state courts to address inequities but leaves 
control over the terms of a State’s waiver of sovereign 
immunity with the State itself. 

14 

CONCLUSION 

The judgment of the Supreme Court of Minnesota 
should be affirmed based on a construction of Section 
1367 that avoids serious constitutional difficulties. 

Respectfully submitted. 

THEODORE B. OLSON 
Solicitor General 

ROBERT D. MCCALLUM, JR. 

Assistant Attorney General 

PAUL D. CLEMENT 

Deputy Solicitor General 

BARBARA MCDOWELL 

Assistant to the Solicitor 

General 

MARK B. STERN 
ALISA B. KLEIN 

Attorneys 

OCTOBER 2001 

14 Plaintiffs, of course, also may seek to protect themselves by 
simultaneously filing suit in federal and state court and asking the 
state court to stay its hand until the federal court has determined 
whether to hear the pendent claim on the merits. 

APPENDIX 

The Eleventh Amendment to the United States 
Constitution provides: 

The Judicial power of the United States shall not 
be construed to extend to any suit in law or equity, 
commenced or prosecuted against one of the United 
States by Citizens of another State, or by Citizens 
or Subjects of any Foreign State. 

Section 1367 of Title 28 of the United States Code 
provides: 

(a) Except as provided in subsections (b) and 
(c) or as expressly provided otherwise by Federal 
statute, in any civil action of which the district 
courts have original jurisdiction, the district courts 
shall have supplemental jurisdiction over all other 
claims that are so related to claims in the action 
within such original jurisdiction that they form part 
of the same case or controversy under Article III of 
the United States Constitution. Such supplemental 
jurisdiction shall include claims that involve the 
joinder or intervention of additional parties. 

(b) In any civil action of which the district 
courts have original jurisdiction founded solely on 
section 1332 of this title, the district courts shall not 
have supplemental jurisdiction under subsection (a) 
over claims by plaintiffs against persons made par- 
ties under Rule 14, 19, 20, or 24 of the Federal Rules 
of Civil Procedure, or over claims by persons pro- 
posed to be joined as plaintiffs under Rule 19 of such 
rules, or seeking to intervene as plaintiffs under 
Rule 24 of such rules, when exercising supplemental 

(1a) 

2a 

jurisdiction over such claims would be inconsistent 
with the jurisdictional requirements of section 1332. 

(c) The district courts may decline to exercise 
supplemental jurisdiction over a claim under 
subsection (a) if— 

(1) the claim raises a novel or complex issue 
of State law, 

(2) the claim substantially predominates over 
the claim or claims over which the district 
court has original jurisdiction, 

(3) the district court has dismissed all claims 
over which it has original jurisdiction, or 

(4) in exceptional circumstances, there are 
other compelling reasons for declining 
jurisdiction. 

(d) The period of limitations for any claim 
asserted under subsection (a), and for any other 
claim in the same action that is voluntarily dis- 
missed 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. 

(e) As used in this section, the term “State” 
includes the District of Columbia, the Common- 
wealth of Puerto Rico, and any territory or posses- 
sion of the United States.