552
Stevens, J., dissenting
cluding § 1367, applies to cases in which a State, or an arm of a State, is named as a defendant. Thus, as the Minnesota Court of Appeals correctly held, "the plain language of subsection (d) allows tolling of any claim dismissed by a federal district court, whether dismissed on Eleventh Amendment grounds or at the discretion of the federal district court under subsection (c)." 8
The Minnesota Supreme Court reversed, because it considered this Court's holding in Alden v. Maine, 527 U. S. 706 (1999), to compel the view that § 1367(d) was an invalid attempt by Congress to make the State of Minnesota subject to suit in state court without its consent.9 Unlike the State in Alden, however, Minnesota has given its consent to be sued in its own courts for alleged violations of the MHRA within 45 days of receipt of a notice letter from the State Department of Human Rights. The question whether that timeliness condition may be tolled during the pendency of an action filed in federal court within the 45-day period is quite different from the question whether Congress can entirely abrogate the State's sovereign immunity defense. For the Court's Eleventh Amendment jurisprudence concerns the question whether an unconsenting sovereign may be sued, rather than when a consenting sovereign may be sued.
The Court recognized this crucial distinction in Irwin v. Department of Veterans Affairs, 498 U. S. 89 (1990), a case in which the application of equitable tolling to a waiver of federal sovereign immunity was at issue. Although the Court required the Government's assent as to whether it may be sued to be "unequivocally expressed," it presumed the rule of equitable tolling applied once assent was established because tolling would "amoun[t] to little, if any, broadening of the congressional waiver." Id., at 95. The Court
8 604 N. W. 2d 128, 132-133 (2000).
9 See 620 N. W. 2d 680, 686 (2001) ("[W]e read Alden to require that the University's waiver of immunity be limited to the [45-day limitations period]").
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