Artis v. District of Columbia

JUSTICE GORSUCH, with whom JUSTICE KENNEDY, JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.¶verify

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.¶verify

The same might be said about the law before us. Section 1367(d) provides that “[t]he period of limitations . . . 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(d). Grown from a rich common law and state statutory tradition, this provision serves a modest role. If a federal court dismisses a party’s state law claim without ruling on its merits, the law ensures the party will enjoy whatever time state law allows, or at least 30 days, to refile the claim in state court.¶verify

Today the Court clears away this traditional rule because it overlooks the original reasons for it. For the first time in the statute’s history the Court now reads the law to guarantee parties not 30 days or whatever state law permits but months or years more to refile their dismissed state law claims in state court. Rather than reading the statute as generally deferring to state law judgments about the appropriate lifespan of state law claims brought in state courts, the Court now reads the statute as generally displacing them in favor of a new federal rule. Indeed, the Court today tells state courts that they must routinely disregard clearly expressed state law defining the appropriate length of time parties should have to sue on state law claims in state tribunals. Under the Court’s rule, too, the disregard of state limitations law promises to be not only routine but substantial. The Court’s approach will require state courts to entertain state law claims that state law deems untimely not only by weeks or months but by many years, as 24 States, the National Conference of State Legislatures, and the Council of State Governments warn us. And the Court demands all this without offering any rational account why it is necessary or proper to the exercise of one of the federal government’s limited and enumerated powers. It may only be a small statute we are interpreting, but the result the Court reaches today represents no small intrusion on traditional state functions and no small departure from our foundational principles of federalism. Respectfully, I dissent.¶verify

Start with the statute’s key term. Where, as here, a law instructs us to “toll” a limitations period, we know it may be telling us to do one of (at least) two different things. The dictionary informs that to “toll” means “[t]o take away, bar, defeat, [or] annul.” See 18 Oxford English Dictionary 204 (2d ed. 1989); Webster’s New International Dictionary 2662 (2d ed. 1957) (“[t]o take away; to vacate; to annul”); Oxford Latin Dictionary 1947 (1982) (“tollere,” the Latin origin, means to “remove” or “lift”). So when a statute speaks of tolling a limitations period it can, naturally enough, mean either that the running of the limitations period is suspended or that the effect of the limitations period is defeated. The first understanding stops the limitations clock running until a specified event begins it running again: call it the stop clock approach. The second understanding allows the limitations clock to continue to run but defeats the effect of the clock’s expiration for an additional specified period of time: call it the grace period approach.¶verify

That both of these understandings of the word “toll” are indeed possible and in fact historically common this Court has already explained in Chardon v. Fumero Soto , 462 U. S. 650 (1983):¶verify

''Tolling effect’ refers to the method of calculating the amount of time available to file suit after tolling has ended. The statute of limitations might merely be suspended ; if so, the plaintiff must file within the amount of time left in the limitations period. . . . It is also possible to establish a fixed period such as six months or one year during which the plaintiff may file suit, without regard to the length of the original limitations period or the amount of time left when tolling began.” Id. , at 652, n. 1 (emphasis added).¶verify

When it comes to federal law today, Chardon has further explained, both kinds of tolling can be found. “[S]ome federal statutes provide for suspension” of the running of the limitations period, or the stop clock approach, while “other statutes establish a variety of different tolling effects,” including grace periods for refiling after dismissal. Id., at 660, n. 13.¶verify

Neither is it a surprise that Chardon acknowledged tolling statutes might come in (at least) these two varieties. At common law, both types of tolling were well and long known, if often employed in different circumstances to address different problems in equitably tailored ways.¶verify

Take the stop clock approach. While any generalization is subject to its exceptions, the stop clock approach was often used at common law to suspend a plaintiff ’s duty to bring a timely lawsuit if, and for the period, the plaintiff was prevented from coming to court due to some disability.¶verify

And this common law rule made common sense in those circumstances. After all, if (say) a defendant’s fraud prevented the plaintiff from discovering his injury, it’s easy enough to see why the limitations clock should stop running until the fraud is revealed and the disability thus dissipated. 1¶verify

By contrast, the grace period approach was commonly used in cases where, as here, the plaintiff made it to court in time but arrived in the wrong court and had to refile in the right one. In this situation, equity didn’t necessarily call for suspending the running of the limitations period for whatever arbitrary period of time—weeks or months or years—the suit happened to sit in court before dismissal. It’s not as if the defendant or uncontrollable circumstances had conspired to prevent the plaintiff from proceeding during that period. Instead, the law commonsensically held that in these circumstances a grace period would suffice to allow the plaintiff a brief time to find his way to and refile in the correct court. 2¶verify

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1 See Developments in the Law: Statutes of Limitations, 63 Harv. L. Rev. 1177, 1220 (1950) (“[C]ircumstances which—despite the existence of a right to sue—hinder or prevent suit have been recognized by courts and legislatures as cause for postponing the start of the statutory period until the occurrence of some additional fact, or for interrupting the running of limitations while some condition exists”); 13 American and English Encyclopaedia of Law 739–745 (1890) (discussing “disabilities which postpone the running of the statute,” such as infancy, absence of the defendant, insanity, and imprisonment).¶verify

2 See, e.g., Woods v. Houghton , 1 Gray 580, 583 (Mass. 1854) (grace period allowed after plaintiff filed in the “wrong county”); Pittsburg, C., C. & St. L. R. Co. v. Bemis , 64 Ohio St. 26, 27–28 (1901) (grace period allowed after suit was dismissed by federal court); Cox v. Strickland , 47 S. E. 912, 915 (Ga. 1904) (grace period allowed for refiling “in the proper forum”). Indeed, courts have rejected the stop clock approach in determining the time to refile. See Martin v. Archer , 3 Hill 211, 215 (SC 1837) (“A former suit is not a suspension of the statute during the time it is pending”). Simply put, when it came to tolling effects, the “pendency of legal proceedings” was “quite different from disabilities.”¶verify

Indeed, grace periods appear to find their roots in a common law rule known as the “journey’s account” that expressly sought to account for and afford to a dismissed party “the number of days which [he] must spend in journeying to the court” to refile his claim. 37 C. J., Limitations of Actions §526, p. 1082 (1925); see E. Coke, The Second Part of the Institutes of the Laws of England 567 (1642) (reprint 1797) (“[T]he common law set downe the certaine time of 15 dayes,” because “a dayes journey is accounted in law 20 miles,” as “a reasonable time . . . within which time wheresoever the court of justice sate in England, the party . . . wheresoever he dwelt in England . . . might . . . by the said account of dayes journies appeare in court”); Spencer’s Case , 77 Eng. Rep. 267, 267–268 (1603) (party has “the benefit of a new writ by journeys accompts” after first writ “abated”); Elstob v. Thorowgood , 91 Eng. Rep. 1086, 1087 (1697) (party has 30 days to bring an action “by journeys account” to avoid “the Statute of Limitations”).¶verify

When it comes to the statute before us, the textual and contextual clues point in the same and unsurprising direction. Much like the journey’s account from which it originated, section 1367(d)’s “tolling” provision seeks to provide the plaintiff who finds her case dismissed because she filed in the wrong court a reasonable grace period to journey to the right court to refile. No more and no less.¶verify

Take the textual clues. Section 1367(d) says that “the period of limitations . . . 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.” Note that the law uses the words “tolled” and “tolling” in the same sentence. Normally, we assume that when Congress repeats a term in a statute the term’s meaning remains constant throughout. And that assumption is¶verify

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13 American and English Encyclopaedia of Law, at 745–746.¶verify

surely “at its most vigorous” where, as here, Congress repeats the same term in the same sentence. Brown v. Gardner , 513 U. S. 115, 118 (1994).¶verify

This traditional rule of construction tells us a great deal. It does because no one doubts that the state law “tolling period[s]” referenced in the second half of the sentence were at the time of section 1367(d)’s enactment—and still are—grace periods allowing parties a specified number of days or months after dismissal to refile in the proper court. See, e.g., Colo. Rev. Stat. §13–80–111 (1990) (providing that the plaintiff “may commence a new action upon the same cause of action within ninety days after the termination of the original action”). 3 In fact, these statutes were often self-consciously patterned on the journey’s account doctrine, seeking to address much the same problem the common law faced with much the same solution. 4¶verify

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3 At the time of section 1367(d)’s enactment, it appears at least 31 of 36 States that provided tolling of some kind guaranteed a grace period. See also Brief for National Conference of State Legislatures et al. as Amici Curiae 1a–25a (discussing current state statutes).¶verify

4 The “[p]rinciple of journeys account became definitely fixed and somewhat enlarged in England by an early statute. . . . This statute, with varying changes, has been enacted in nearly all of the states of the Union.” 19 American and English Encyclopaedia of Law 262 (2d ed. 1901); Cox , 47 S. E., at 915 (explaining that, “in lieu” of the journey’s account, the colonial act of 1767 permitted “a new action within one year” of dismissal, and then the act of 1847 allowed a new action within six months of dismissal “notwithstanding the intervening bar of the statute”); Denton v. Atchison , 90 P. 764, 765 (Kan. 1907) (statute adopted “the common-law rule of ‘journeys account’ ”); English v. T.H. Rogers Lumber Co. , 173 P. 1046, 1048 (Okla. 1918) (“Statutes such as ours are said to have their origin in the common law rule of ‘journeys account’ ”); Baker v. Cohn , 41 N. Y. S. 2d 765, 767 (1943) (“Historically, the extension of one year’s time . . . is said to be an outgrowth of the ancient common law rule of ‘journey’s account’ ”); Sorensen v. Overland Corp. , 142 F. Supp. 354, 362 (Del. 1956) (“The statute of ‘journeys’ account’ is one founded under English law, and enacted in most jurisdictions today”); Wilt v. Smack , 147 F. Supp. 700, 702 (ED Pa. 1957) (“Statutes of Journey’s Account originated in England and have long¶verify

And the fact that Congress used a variant of the word “toll” in the second half of the sentence to refer to grace periods strongly suggests it did so in the first half of the sentence too. So that the first phrase “shall be tolled while the claim is pending and for a period of 30 days” should be understood to extend a grace period of 30 days after dismissal much as the second phrase “ tolling period” is understood to refer the reader to parallel state law grace periods affording short periods for refiling after dismissal.¶verify

The alternative reading endorsed by the Court today extends too little respect to Congress’s competency as drafter. It asks us to assume the legislature was so garbled in its expression that it switched the meaning of the term “toll” halfway through a single sentence without telling anyone. It asks us to conclude that when Congress spoke of the period “tolled” in the first part of the sentence it meant to refer (unambiguously, no less) to a stop clock approach even though it used the term “tolling period” to refer to existing state law grace periods in the second part of the sentence. The statute’s text drops no hint of such a silent switch and it’s a lexicographical leap our traditional rules of statutory interpretation warn against.¶verify

That, though, represents just the beginning of the textual troubles with the approach the Court adopts. Consider next the fact that section 1367(d) tells us to apply its federal tolling rule “unless” state law provides a “longer tolling period.” In this way, the statute asks us to compare the length of the state “tolling period” with the length of the federal “tolling period” set by section 1367(d) and apply the longer one. See ante, at 16 (courts apply the federal rule if “the state-law tolling period will not be longer than §1367(d)’s”). The equation we’re asked to perform is straightforward and sensible if we understand both the state and federal “tolling periods” discussed in¶verify

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existed, in varying forms, among the states”).¶verify

this statute as grace periods. We simply pick the longer grace period: is it the federal 30 day period or one provided by state law?¶verify

By contrast, the equation is anything but straightforward or sensible under the Court’s approach. The Court tells us that, under its reading of the statute, the federal “tolling period” is the “duration of the claim’s pendency in federal court” plus 30 days. See ante, at 12, 15. So the decision whether to apply the federal or the state tolling period turns not on the sensible question which would afford the plaintiff more time to refile but instead on the happenstance of how long the plaintiff ’s claim sat in federal court before dismissal. Under the Court’s interpretation, we apply the federal stop clock rule if, but only if, the time the case happened to linger in federal court before dismissal (plus 30 days) is longer than the relevant state grace period. But to state the test is to see it is a nonsense—one we would not lightly attribute to any rational drafter, let alone Congress.¶verify

Consider some examples of the absurdities that follow from the apples-to-oranges comparison the Court’s test requires. Say state law provides a 5 year statute of limitations and a 1 year grace period for refiling. The plaintiff files in federal court one day before the statute of limitations expires. The litigation in federal court lasts 1 year. Under the Court’s view, the federal “tolling period” would be 1 year plus 30 days—the time the claim was pending in federal court plus 30 days after dismissal. That period is longer than the state tolling period of 1 year and so the federal tolling rule, not the state rule, controls—leaving the plaintiff only 31 days to refile her claim after dismissal even though state law would have allowed a full year.¶verify

That may be curious enough, but curiouser it gets. Now suppose the litigation in federal court lasts only 10 months. That makes the federal tolling period only 11 months (10 months plus 30 days). Under the Court’s view, state law now provides a longer tolling period (1 year) and the litigant gets a full year to refile in state court instead of 31 days. No one has offered a reason why the happenstance of how long the federal litigation lasted should determine how much time a litigant has to refile in state court. Yet that is what the Court’s reading of section 1367(d) demands.¶verify

Of course, it’s easy enough to imagine the rule the Court really wants to adopt today: it would like to afford litigants as a matter of federal law the benefit of a stop clock approach whenever doing so would yield more time to refile than the state’s grace period would permit. But to accomplish so much we would need a very different statute than the one we have. We would need to be able to compare the relevant state law grace “tolling period” not with the federal “tolling period” as the statute says but with the amount of time left under the relevant state limitations period on the date the plaintiff filed her federal suit . The problem is, no one has even hinted how we might lawfully superimpose all those italicized words (entirely of our own devise) onto the statutory text. 5¶verify

There are still more textual clues that we have lost our way today. Congress spoke of the federal tolling period as embracing “30 days after . . . dismissal.” That language sounds like and fits with a traditional grace period or journey’s account approach. As we’ve seen, grace periods often speak about affording parties some short period of time after dismissal to refile their claims. Meanwhile, this¶verify

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5 In footnote 12 of its opinion, the Court suggests that a comparison between state and federal tolling periods may not be “inevitable” and that in “extraordinary circumstances” like those discussed above a comparison between the state tolling period and the time left on the clock before the federal filing might prove “more natural.” Ante, at 16, n. 12. But even here the Court does not attempt to explain how the latter comparison might be fairly extracted from the statutory text—let alone only in “extraordinary circumstances.”¶verify

language proves no small challenge to square with a stop clock approach. Generally we say a clock is stopped due to the onset of a particular event like a disability: something usually causes the stopping of the clock and when that something goes away, the clock restarts. Here, the Court says, the clock stops once a claim is pending in federal court. Yet it doesn’t restart when that something—the claim’s pendency—goes away but instead waits another 30 days before ticking again. All without any apparent reason for the additional delay.¶verify

This case illustrates the oddity. The petitioner filed her suit in federal court with 23 months remaining on the three year statute of limitations. The case remained in federal district court for nearly three years before dismissal. Under the grace period approach the 30 day provision does just as it appears, providing petitioner with 30 days to journey to and refile in the correct court. Under the stop clock approach, though, the statute affords the petitioner 23 months plus a random 30 days more to refile. Indeed, on the stop clock approach the only work the 30 day period is even imaginably left to do comes in cases where the plaintiff filed her federal suit at the very end of the limitations period. And if that’s the only problem Congress sought to address, it chose a mighty murky way to do it, for the parties point to not a single stop clock provision in all of federal law that includes language anything like this. All while (again) this language fits hand in glove with every grace period statute known. 6¶verify

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6 The Court offers a couple of competing textual arguments but neither can bear much weight.¶verify

First , the Court suggests that deriving a grace period from the statutory term “period of limitations” requires “strain[ing].” Ante, at 12. But the fact is both the grace period and stop clock interpretations require some (and some very similar) inferences. The grace period approach construes the term “period of limitations” as directing us to the “effect of the period of limitations” that is tolled or taken away. For its part¶verify

Beyond all these textual clues lie important contextual ones too. When Congress replants the roots of preexisting law in the federal code, this Court assumes it brings with it the surrounding soil, retaining the substance of the tradition it engages. Respect for Congress, this Court has held, means assuming it knows and “legislate[s] against a background of [the] common law . . . principles” found in the field where it is working. Samantar v. Yousuf , 560 U. S. 305, 320, n. 13 (2010); see also Goodyear Atomic Corp. v. Miller , 486 U. S. 174, 184–185 (1988). And, as we’ve seen, the state law of tolling Congress expressly referenced and replanted in section 1367(d) comes heavily encrusted with meaning. In cases involving dismissal and refiling, state statutory law and the common law from which it grew have long afforded a grace period to allow the litigant an appropriately tailored time to find his way to the proper court. Meanwhile, a stop clock approach isn’t usually part of this ecosystem for nothing has dis-¶verify

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meanwhile, the stop clock approach construes “period of limitations” to refer to the “running of the period of limitations” that is tolled or taken away. The question is which inference is more persuasive. And in light of the dual kinds of tolling the law has long recognized, as well as the textual and contextual clues before us (some still to be discussed), the better answer is clear.¶verify

Second , the Court complains that the grace period interpretation renders “superfluous” the phrase “while the claim is pending.” Ante, at 12. But the phrase does important work under the grace period approach, ensuring that the expiration of limitations period does not take effect while the claim is pending in federal court. Indeed and somewhat paradoxically, the Court itself implicitly recognizes that the language does real work when it suggests (in its next sentence no less) that the grace period approach could “yield an absurdity” by working to revive a claim that has already expired before it is brought in federal court. Ante, at 12–13. There is of course no absurdity in it, for the term “while the claim is pending” does the important work of addressing that very concern, preventing the expiration of the statute of limitations from taking effect while the claim is pending even as the language also and sensibly permits the statute of limitations to take effect if it expires before the plaintiff files his claim in federal court.¶verify

abled the litigant from reaching a court in the first place and all he must do is journey from the old court to the new one. We don’t assume Congress strips replanted statutes of their soil, and we should not assume Congress displaced so much tradition in favor of something comparatively foreign. 7¶verify

The Court’s reformation of the statute introduces another problem still—one of significantly greater magnitude yet. In our constitutional structure, the federal government’s powers are supposed to be “few and defined,” while the powers reserved to the States “remain . . . numerous and indefinite.” The Federalist No. 45, p. 328 (B. Wright ed. 1961) (Madison); McCulloch v. Maryland , 4 Wheat. 316, 405 (1819). No doubt, the Constitution affords Congress the authority to make laws that are “necessary and proper” to carry out its defined duties. Art. I, §8, cl. 18. But it is difficult to see how, on the Court’s interpretation, section 1367(d) might be said to survive that test—how it¶verify

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7 The Court dismisses this “history lesson” on the ground that it doesn’t know if Congress had “the ancient common-law . . . in mind.” Ante, at 14, n. 11. But respect for Congress’s competency means we presume it knows the substance of the state laws it expressly incorporates into its statutes and the common law against which it operates. See supra, at 11. When the Court turns to offer its own competing contextual evidence, it observes that a stop clock approach can be found in many other places in the U. S. Code. See ante , at 7, and n. 4, 15–16. But it turns out the Court’s stop clock examples often involve situations where some disability prevents the plaintiff from proceeding to court. See, e.g., 26 U. S. C. §6213(f )(1) (limitations period for filing a petition in the Tax Court “shall be suspended for the period during which the debtor is prohibited . . . from filing a petition”); §6503(a)(1) (limitations period on making an assessment shall “be suspended for the period during which the Secretary is prohibited from making the assessment”). Notably, not one of the Court’s examples purports to address a situation like the one we face: where the plaintiff has proven able to come to court but merely chosen the wrong one. The Court’s own contextual evidence, then, serves to illustrate just how unusual and out of place a stop clock approach would be here.¶verify

might be said to be necessary and proper to effectuate any recognized federal power or how it could be called anything other than an unconstitutional intrusion on the core state power to define the terms of state law claims litigated in state court proceedings. 8¶verify

Under our precedent, the analysis here begins with Jinks v. Richland County , 538 U. S. 456 (2003). Without some tolling rule for dismissed state law supplemental claims, the Court in Jinks noted, federal courts would be left with “three basic choices:” (1) “condition dismissal of the state-law claim on the defendant’s waiver of any statute-of-limitations defense in state court”; (2) “retain jurisdiction over the state-law claim even though it would more appropriately be heard in state court”; or (3) “dismiss the state-law claim but allow the plaintiff to reopen the federal case if the state court later held the claim to be time barred.” Id., at 462–463. All three choices, the Court held, would negatively affect the ''administration of justice’ in federal court” and thus impair the exercise of the enumerated “judicial power” of the federal government in Article III. Id., at 462 (emphasis added). Accordingly, the Court reasoned, some tolling rule “assur[ing] that statelaw claims asserted under [the supplemental jurisdiction statute] will not become time barred while pending in federal court” is necessary and proper to the execution of the federal judicial power. Id., at 464 .¶verify

The necessary and proper federal interest Jinks recognized is fully discharged by a grace period. Even petitioner appears to concede this. See Brief for Petitioner 27 (“Of¶verify

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8 Of course, the case before us arises from litigation in the District of Columbia where the federal government enjoys plenary power. See Art. I, §8, cl. 17. But the federalism concern here cannot be ignored, as the Court today rightly acknowledges ( ante, at 16–19), because the statute at issue applies nationwide and the vast bulk of its applications come in the States and implicate state causes of action, state limitations laws, and state court proceedings.¶verify

course, the grace period approach also guarantees a plaintiff who is unsuccessful in federal court the opportunity to bring a claim in state court”). Nor could anyone easily argue otherwise. Jinks itself proceeded to uphold the constitutionality of section 1367(d) as necessary and proper on the basis of an understanding that the statute guaranteed just 30 days to a disappointed litigant to refile in state court. No one in Jinks even hinted that a longer period might be necessary or proper to serve any valid federal interest. 9¶verify

For good reason, it turns out. Trying to imagine how the Court’s novel twist on section 1367(d) might serve a necessary and proper federal interest is a hard business. To discharge the federal interest in preventing state law claims from “becom[ing] time barred while pending in federal court” it may be necessary to impose a short grace period. But how is it necessary to do anything more than that, like consult the happenstance of how long the federal court took to dismiss the case and then tack an equivalent number of months or years onto state law limitations periods? What federal interest could that even plausibly serve? The Court does not and cannot attempt an answer¶verify

------ because its proffered solution is simply orthogonal to any federal concern.¶verify

9 See Brief for Petitioner in Jinks v. Richland County , O.T. 2002, No. 02–258, p. 9 (“The tolling window created lasts only 30 days after dismissal without prejudice from district court[.]”); id. , at 37 (section 1367(d) “provides a de minimis window in which a plaintiff may refile in state court if the limitations period expires during the pendency of the federal district court action”); Brief for Respondent in No. 02–258, p. 31 (describing section 1367(d) as providing “a thirty-day tolling window”); Brief for United States in No. 02–258, pp. 16, 22 (describing section 1367(d) as “minimally intrusive on state prerogatives” since it ensures that the “statute of limitations on the pendent claim will not expire during the pendency of the federal-court action”); Pet. for Cert. in No. 02–258, p. 22 (“Section 1367(d) merely saves—for a maximum excess period of 30 days—a preexisting lawsuit that must be refiled to allow the matter to be heard in a forum preferable to the State, namely, in its own courts”); see also Brief for State of Wisconsin et al. as Amici Curiae 8–9.¶verify

To be sure, the Court suggests that its approach will help the States. See ante , at 19. But a great many States have suggested the opposite, complaining to us that the Court’s approach will regularly relegate to the dustbin their own state limitations policy choices. See Brief for State of Wisconsin et al. as Amici Curiae 22–27; Brief for National Conference of State Legislatures et al. as Amici Curiae 6–29. And surely they would seem better positioned than we to know their own interests. To this, the Court replies that “[w]ere the dissent’s position to prevail, cautious plaintiffs would surely” file “two actions [one in federal, the other in state court] and ask the state court to hold the suit filed there in abeyance pending disposition of the federal suit,” causing “plaintiffs to resort to wasteful, inefficient duplication.” Ante, at 19. But, of course, this observation does nothing to tell us whether stop clock tolling is necessary to serve a federal interest. Nor does it even tell us whether stop clock tolling is necessary to help the States . A very long historical record before us suggests that grace periods have worked well to obviate the need for simultaneous filings in state and federal court; the Court offers no account why its innovation might be needed only now to rescue States from their own legislative choices about the appropriate lifespan of their state law claims.¶verify

The Court’s approach isn’t just unnecessary; it isn’t proper either. A law is not “proper for carrying into [e]xecution” an enumerated power if it “violates the principle of state sovereignty” reflected in our constitutional tradition. Printz v. United States , 521 U. S. 898, 923–924 (1997). The word “proper” was “used during the founding era to describe the powers of a governmental entity as peculiarly within the province or jurisdiction of that entity.” Lawson & Granger, The “Proper” Scope of Federal¶verify

Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 297 (1993). Limitations periods for state law claims fall well within the peculiar province of state sovereign authority. As Chancellor Kent explained, ''[t]he period sufficient to constitute a bar to the litigation of sta[l]e demands, is a question of municipal policy and regulation, and one which belongs to the discretion of every government, consulting its own interest and convenience.'' Sun Oil Co. v. Wortman , 486 U. S. 717, 726 (1988) (quoting 2 J. Kent, Commentaries on American Law 462–463 (2d ed. 1832)). Described as “laws for administering justice,” time bars are “one of the most sacred and important of sovereign rights and duties.” Hawkins v. Barney’s Lessee , 5 Pet. 457, 466 (1831). And “from a remote antiquity,” they have been the province of the sovereign “by which it exercises its legislation for all persons and property within its jurisdiction.” McElmoyle ex rel. Bailey v. Cohen , 13 Pet. 312, 327 (1839). Our States have long “exercise[d] this right in virtue of their sovereignty.” Ibid.¶verify

The decision today gives short shrift to these traditional interests. Just consider how differently the two approaches treat States when it comes to one of their most “important of sovereign rights.” Under a grace period approach, Congress simply fills a void, for the great bulk of States provide for grace periods of 30 days or longer; only a few States don’t allow that much or don’t speak to the question. See n. 3, supra . So on the grace period account, Congress provides a modest backstop consistent with existing state law. By contrast, under the stop clock interpretation, state law grace periods are displaced whenever the federal litigation (plus those odd 30 days) happens to be longer than the state law grace period. And that, of course, is sure to happen often, for federal litigation is no quick business and state law grace periods often are. Any time federal litigation (plus, again, 30 days) lasts longer than the 30 or 60 or 90 or 365 day grace period found in state law, state law will be forced to give way, and a federally mandated stop clock approach will usurp its place.¶verify

The stop clock approach, then, ensures that traditional state law judgments about the appropriate lifespan of state law claims will be routinely displaced—and displaced in favor of nothing more than a fortuity (the time a claim sits in federal court) that bears no rational relationship to any federal interest. The Court’s approach forces state courts to entertain routinely state law claims that the state legislatures treat as no claims at all. And it forces state courts to entertain claims that aren’t just stale by days or weeks under state law, but stale by months or even many years too. So, for example, take a plaintiff who files suit in federal court shortly after a six year state law limitations period begins running and the litigation lasts six years before it’s finally dismissed. Under the Court’s approach, federal law will now promise the plaintiff nearly six years more (plus those stray 30 days again) to refile his claim in state court. Neither is this illustration fiction; it is drawn from the facts of Berke v. Buckley Broadcasting Corp. , 821 A. 2d 118, 121 (N. J. Super. Ct. App. Div. 2003). See also Krause v. Textron Fin. Corp. , 2007 WL 8054628, *1–2 (Fla. Cir. Ct. 2007); Brief for State of Wisconsin et al. as Amici Curiae 20–21 (offering many more examples). Given all this, it’s no wonder that 24 States, the National Conference of State Legislatures, and the Council of State Governments complain that the result the Court reaches today flies in the face of federalism. 10¶verify

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10 The Court’s reply—that stop clock tolling is “standard” and “off-theshelf”—is no answer. Ante, at 19. The propriety of a legal tool in one area does not establish its propriety in all; while stop clock tolling may be standard and off-the-shelf in other contexts (such as for equitable tolling) that doesn’t mean it is necessary and proper here. Indeed, and as we’ve seen, the “standard” and “off-the-shelf” solution to the problem¶verify

The Court today clears away a fence that once marked a basic boundary between federal and state power. Maybe it wasn’t the most vital fence and maybe we’ve just simply forgotten why this particular fence was built in the first place. But maybe, too, we’ve forgotten because we’ve wandered so far from the idea of a federal government of limited and enumerated powers that we’ve begun to lose sight of what it looked like in the first place. If the federal government can now, without any rational reason, force States to allow state law causes of action in state courts even though the state law limitations period expired many years ago, what exactly can’t it do to override the application of state law to state claims in state court? What boundaries remain then?¶verify

I respectfully dissent.¶verify

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of dismissal and the need to refile is the one adopted at common law and by state law: a grace period. If we’re interested in looking for the right shelf, that’s the one.¶verify