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Argument analysis: A living Federal Tort Claims Act?

On Wednesday, a subdued Court spent two hours hearing oral arguments in United States v. Wong and United States v. June, considering whether the limitations periods under the Federal Tort Claims Act are jurisdictional or subject to equitable tolling. The Justices asked relatively few questions, allowing all four attorneys to speak uninterrupted for long stretches and to provide lengthy answers to many questions.

The Court heard Wong first, considering the six-month limitations period for filing tort claims against the United States in federal district court following presentment of the claim to an administrative agency. Arguing for the United States, Assistant to the Solicitor General Roman Martinez emphasized that Congress “transplanted” or “cut-and-pasted” the language from the Tucker Act’s limitations period for non-tort monetary claims against the United States into the FTCA’s limitations period. And although neither period uses the word “jurisdiction,” because Congress enacted the FTCA against numerous decisions holding the same language in the Tucker Act jurisdictional and not subject to equitable tolling, it necessarily understood itself to be incorporating that same settled jurisdictional meaning into the FTCA. Martinez repeatedly returned to this point. He also called the FTCA the “second great waiver of sovereign immunity,” on which Congress was very careful to protect government from late claims by enacting a strict limitation on when the government can be sued.

Justice Ruth Bader Ginsburg was the most frequent early interlocutor, focusing on the fact that the Tucker Act is not the FTCA and neither statute uses the word “jurisdiction.” Thus, the line of cases accepting a provision as jurisdictional based on a history of treating it as jurisdictional explains the treatment of the Tucker Act’s limitations period, but does not justify similar treatment for the FTCA’s period. Instead, the Court’s recent cases – which demand a clear statement that something is jurisdictional and impose a rebuttable presumption that equitable tolling applies, even for actions against the government – control. And under those decisions, she suggested, the FTCA would not be jurisdictional. But Martinez argued that the Court does not look for “magic words,” but instead for textual, contextual, and purposive indications of “what Congress understood itself to be doing at the time it enacted the statute.” At various points, Justices Ginsburg and Elena Kagan both expressed concern that the government’s argument meant any statute waiving sovereign immunity must be jurisdictional and not subject to tolling.

This led to a wide-ranging, somewhat abstract, discussion of how the Court’s modern approach to statutory interpretation applies to statutes enacted prior to those decisions. Justice Kagan repeatedly pressed the government on whether this inevitably meant that recent decisions such as 1990’s Irwin v. Veterans Administration only could apply to new statutes. The government’s argument, she suggested, was that the FTCA was jurisdictional because it was modeled after pre-Irwin statutes involving waivers of sovereign immunity that Congress had understood to be jurisdictional; this meant that any pre-Irwin statute must be jurisdictional, without Congress having to satisfy modern interpretive requirements. Justice Ginsburg followed in asking whether all statutes involving waivers of sovereign immunity necessarily are jurisdictional, given Congress’s older understandings.

Justice Stephen Breyer then wondered whether the meaning of “jurisdiction” changed with the more recent cases and whether we should understand Congress as wanting the statute to pick up those later interpretations of jurisdiction or to have its understanding of jurisdiction remain the same. Justice Antonin Scalia immediately responded, to laughter, that a “living Federal Tort Claims Act is what we’re talking about here.” And such an idea that could not be limited only to the FTCA, but would apply to every statute. Martinez responded that congressional intent must be ascertained at the time the statute was passed. He further noted that, because early versions of the FTCA had included provisions for equitable tolling, the exclusion of tolling language from the enacted law must be understood as a deliberate legislative choice.

Eric Schnapper argued for Wong. He began by emphasizing not Irwin’s presumption of equitable tolling (which Martinez had described as placing a thumb on the scale in favor tolling), but the recent demand for a clear statement of jurisdictionality in Arbaugh, which Schnapper said placed a “whole hand on the scale” in favor of a non-jurisdictional understanding. The focus is on whether a statute speaks in jurisdictional terms or is included in a jurisdictional provision, neither of which is true (or ever has been true) of the FTCA’s statute of limitations. In response to questioning from Justice Scalia, Schnapper emphasized the differences between the Tucker Act and the FTCA and that the similar language – “shall be forever barred” – did not necessarily carry jurisdictional meaning.

The Court then moved Schnapper to the issue of congressional intent. Justice Scalia asked whether the Court is bound by what Congress believed at the time it was enacting a statute. Justice Samuel Alito, who noted the argument was “spinning into degrees of abstraction,” suggested that “it’s hard for me to believe that Congress really had any intent whatsoever on . . . these issues.” But he also insisted that the answer could not be that the Court must both look at congressional intent as to jurisdictionality and accept later judicial changes in the rules for defining jurisdictionality, because it cannot do both. Schnapper tried to shift the focus away from intent and onto Arbaugh’s clear statement rule, which focuses only on the statutory text. He also drew an analogy to the Court’s implied right of action jurisprudence, in which new judicial rules of statutory interpretation have been applied to laws enacted before those interpretive rules were established; in a similar way, Irwin and the jurisdictionality cases should be applied even to statutes adopted before those rules. But Justice Scalia continued to insist that when a statute borrows language from another statute and that language has been consistently interpreted a certain way, courts presume that is what Congress had in mind for the new statute; “it simply is not the way we’ve proceeded” to abandon that rule and make up what the court believes is best in the face of congressional silence.

Justice Ginsburg then brought Schnapper back to the textual differences between the FTCA and the Tucker Act, with Schnapper emphasizing the requirement that the United States would be liable in the same manner and to the same extent as a private defendant under state law. This led to an exchange with Chief Justice John Roberts about the fact that different procedural rules continue to apply if the action is brought against the United States in state court; Schnapper responded that the limitations period is a bar to liability, not a procedural rule like the number of depositions a party gets.

Schnapper’s argument also was marked by several instances in which Justices interposed themselves between Schnapper and other Justices, helping to redirect the argument. For example, when Justice Scalia argued that the presence of exceptions and procedural rules did not change the jurisdictionality question, Justice Sonia Sotomayor interrupted to say that, while the FTCA borrows some phrases from the Tucker Act, it “created a new statute”; Schnapper agreed, then began identifying the significant differences between the statutes with respect to equitable tolling.

At issue in June is whether the two-year period for filing an administrative claim with the appropriate agency can be tolled. Arguing for the government, Assistant to the Solicitor General Elizabeth Prelogar began by responding to questions raised in the first hour about why the FTCA might be different than other waivers of sovereign immunity; she responded that the FTCA contains “statute-specific evidence that Congress did not want this particular enactment to be subject to equitable tolling,” a phrase she repeated several times. Like Martinez, Prelogar emphasized that Congress had lifted the FTCA’s time bar directly from the Tucker Act, meaning the long line of cases holding the Tucker Act period jurisdictional must apply to the FTCA. She also tied this point to the uniqueness of the FTCA, arguing that while we today view it commonplace to sue the United States in its own name for money damages, in 1946 it was an “incredibly big deal” when Congress waived sovereign immunity as to tort claims.

Several Justices pushed Prelogar on the effect of the recent changes to the Court’s interpretive rules on jurisdictionality and tolling. Chief Justice Roberts suggested that if Congress enacted a statute tomorrow using the identical language from the FTCA, it would not be jurisdictional. Justice Ginsburg argued that, absent a long history of case law, the absence of a clear statement declaring something jurisdictional means it is not jurisdictional. Justice Kagan asked how to approach the “different world” of Irwin and the Court’s recent jurisprudence.

Prelogar explicitly accepted that Irwin’s presumption applied at the threshold, but she insisted that it had been rebutted, based on how Congress would have understood what it was doing in enacting the FTCA and the longstanding interpretation of the Tucker Act. Indeed, the “scorecard” shows that most statutes have been found not to allow for equitable tolling against the government, even under Irwin. And she acknowledged that she could not imagine any statute of limitations on claims against government that would not be jurisdictional.

Lastly, Prelogar argued that the fact that FTCA claims are brought in district court while Tucker Act claims are in the Court of Claims did not make a difference. Although the Court of Claims never had the power to issue injunctions, it has always possessed general equity powers. Thus, the absence of equitable tolling under the Tucker Act is not a product of limits on the equitable powers in the Court of Claims and the different forums did not require different understanding of the respective limitations provisions.

Arguing for June, E. Joshua Rosenkranz began by arguing that Wong’s arguments apply with “extra force” to June’s case, which deals not with the timing of a civil action in federal district court, but with the timing of presentment of the claim to an administrative agency as a condition precedent to the lawsuit. By making presentment mandatory in 1966 (twenty years after initial enactment of the FTCA), Congress made the FTCA different than the Tucker Act. This aspect of the FTCA instead looks like Title VII, and the Court has held that presentment in Title VII is not jurisdictional and is subject to equitable tolling; it follows that presentment under the FTCA also is not jurisdictional. While a party cannot bring a lawsuit without exhausting administrative remedies, this is generally not understood as a jurisdictional requirement. Justice Scalia wondered whether tolling could apply to presentment but not to the judicial filing, but Rosenkranz insisted that he was not arguing that.

Rosenkranz agreed with Justice Alito that Congress did not think about any of this in enacting or amending the FTCA. As a result, the case simply came down to competing presumptions – one is Irwin and the clear statement rule, another is that language chosen from a different source should be given the same meaning in a new statute. But Irwin reflects a “sea change” in the law and its presumption must apply to all statutes going forward, regardless of when enacted. And that presumption cannot be overcome simply because the FTCA uses the same language as the Tucker Act, because there is nothing about that adopted language (“forever barred”) that alone suggests jurisdictionality or a prohibition on equitable tolling.

Justice Ginsburg asked Rosenkranz to respond to the government’s argument about the Court of Claims wielding equitable power. He identified precedent explicitly stating that the claims court does not have the same general equitable powers. Moreover, the cases in which it appeared to exercise equity powers were not really equitable decisions, but decisions about whether the court had statutorily authorized power. And those cases came after it had already been established that the Tucker Act limitations period was jurisdictional, suggesting that the presence of equitable power in the Court of Claims was not significant for jurisdictionality purposes.

Finally, responding to the government’s argument, Rosenkranz emphasized the difference between statutory exceptions to a limitations period and equitable tolling. The presence or absence of statutory tolling provisions plays no role in whether equitable tolling is available. Thus, while only a few states had statutory exceptions to statutes of limitations on tort claims at the time of the FTCA, tort claims against private individual had long been subject to equitable tolling. Because the FTCA explicitly provides that the United States is to be liable to the same extent as a private individual, equitable tolling also must apply to the same extent.



Recommended Citation: Howard M. Wasserman, Argument analysis: A living Federal Tort Claims Act?, SCOTUSblog (Dec. 12, 2014, 10:43 AM),