October 31, 2017
Why Is Wisconsin—and 23 Other States—Challenging the Constitutionality of the Federal Supplemental Jurisdiction Statute?
Artis v. District of Columbia, Jeff Mandell, Jeffrey A. Mandell, statue of limitations, statute of limitations
by Jeff Mandell, partner at Stafford Rosenbaum LLP and Chair of the ACS Madison Lawyer Chapter.
Tomorrow, the Supreme Court hears argument in Artis v. District of Columbia, a procedural dispute about the interaction of federal jurisdictional statutes and state limitation periods. It is fairly dry stuff, so much so that it drew only two amicus briefs, far below average. But one of those amicus briefs, filed by the State of Wisconsin and joined by 23 others States, attempts to constitutionalize the dispute, with broad implications.
The Artis case is about the proper interpretation of the federal supplemental jurisdiction statute, 28 U.S.C. §1367. That statute authorizes federal courts with subject-matter jurisdiction over some claims to exercise jurisdiction over related state-law claims that could not independently be brought in federal court. The statute further provides that, in the event the federal court dismisses the claims that qualified for federal jurisdiction, the federal court has the option of maintaining jurisdiction over the state-law claims or dismissing them without prejudice.
The complication arises in subsection (d), which provides that, if the federal court dismisses a state-law claim, the limitation period “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.” Does this mean, as Artis contends, that a plaintiff who files suit early in the limitation period retains the time remaining in that period as of the filing date, plus an additional 30 days? Or, as D.C. asserts, does the statute grant plaintiffs a 30-day window after dismissal to refile—and nothing more?
Each side makes arguments under traditional methods of statutory construction. But the most intriguing brief is Wisconsin’s, which argues that the federal Constitution tips the scales in D.C.’s favor. According to Wisconsin’s brief, Artis’s interpretation of §1367(d) would violate the Constitution. This is an aggressive position. Notably, D.C. has not even hinted at such a view.
Wisconsin roots its argument both in inherent principles of federalism and in the limitations of congressional power to establish rules for federal trial courts under Article III, Section 1. The basic idea is that States get to establish limitation periods for violations of state law and that Congress lacks power to override those state constraints because doing so is not “necessary and proper” to Congress’s role creating federal trial courts. Thus, Wisconsin reasons, “Congress would have no authority to enact [Artis’s] understanding of Section 1367(d).” (Br. at 22.)
To support this argument, Wisconsin hypothesizes the worst possible scenario, based on three criteria: (1) plaintiff files early in the limitation period; (2) litigation in the federal court is drawn-out for years before dismissal of the state-law claims; and (3) plaintiff delays refiling in state court for more than the 30-day grace period that all parties agree is provided by §1367(d). Where any one of these three criteria is absent, Wisconsin’s fears are unrealized. Artis mildly fits this scenario: she filed suit in D.C. court nine-and-a-half months after the three-year limitation period would have expired for most of her claims but for her federal suit.
Wisconsin argues that, because allowing Artis’s suit to proceed would, in effect, extend D.C.’s limitation period, it would improperly overwhelm local prerogatives. Of course, Wisconsin foresees situations more egregious than Artis: “the longer the state limitations period is extended, the greater the harm is to sate interests in avoiding state courts finding themselves awash in claims too stale to be adjudicated certainly.” (Br. at 21 (internal quotation marks omitted).)
This argument falls short in two respects. First, Wisconsin has to stretch for examples with is a significant extension beyond the state-law limitation period. Having presumably case a wide net and searched the tens of thousands of federal cases filed every year, Wisconsin found only seven examples worth citing—over the last 17 years. (See Br. at 20-21 (citing cases).)
Second, Wisconsin’s fearmongering about staleness is unconvincing. These cases involve parties who began litigating in federal court within the limitation period. That means both sides have notice of the dispute and bear obligations to preserve evidence. It follows that even a dismissal and delay before refiling in state court is unlikely to preclude a fair trial. And even if staleness is a concern, under Wisconsin’s worst-case scenario, the plaintiff—who decides when to refile in state court—bears the harm, as the party with the burden of proof.
That said, as weak as Wisconsin’s claimed harms are, the record contains little offsetting benefit to Artis’s preferred reading. Artis has indicated that plaintiffs who file early in the limitation period should have the benefit of the time they did not use earlier to reassess after dismissal of their federal claims. That’s not a slam-dunk argument, but it has some intuitive appeal. Further, it is not Artis’s obligation to defend Congress’s interests and prerogatives, and the United States has not filed a brief articulating its view.
Ultimately, Wisconsin’s argument is an intriguing one, but its brief seems rhetorically overheated. Wisconsin’s repeated invocation of limitation periods extended by years—a remote possibility constantly emphasized in the brief with italics—is strained. And the argument that, if Artis’s interpretation of §1367(d) holds, “there would be no stopping point to what Congress could do to state statutes of limitations” (Br. at 25), is a particularly unconvincing slippery slope. Perhaps these issues contributed to the denial of Wisconsin’s request to participate in oral argument.
In some ways, the most interesting aspect of Wisconsin’s brief—besides a thought-provoking argument—is the list of signatories. Twenty-three other states joined Wisconsin’s brief, and not all of them are represented by attorneys general who reflexively favor states’ rights over the federal government. Perhaps this is a symptom of a rising tide of progressive federalism. If so, challenging the constitutionality of an established jurisdictional statute is an odd choice of a test issue, especially as, were Wisconsin’s argument to prevail, courthouse doors would close a little more against plaintiffs.
Regardless, Wisconsin’s brief raises an unexpected issue and adds a new facet to this procedural dispute. It bears watching to see if the Court asks the parties about Wisconsin’s arguments or if the final opinion addresses the issue in a way that informs our understanding of what test federalism arguments will need to meet in determining whether a legislative enactment is indeed “necessary and proper” to fulfilling one of Congress’s enumerated powers.