Opinion analysis: Clear statements, sovereign immunity, and timeliness
on Apr 23, 2015 at 9:34 am
In United States v. Wong, decided together with United States v. June, the Court concluded, yet again, that a statute of limitations is a “claim-processing rule” and subject to equitable tolling, rather than a limit on the court’s adjudicative jurisdiction which allows for no tolling. But because these cases involved the Federal Tort Claims Act and waiver of federal sovereign immunity, it produced a five-to-four split, unusual for the Court’s recent, generally unanimous jurisdictionality jurisprudence.
Although June and Wong were not consolidated, the United States filed substantially identical briefs in both cases and everyone agreed that the same arguments applied in both and that the outcomes of both must necessarily be the same. At issue in Wong’s case was a wrongful imprisonment claim arising from her detention by the INS in 1999; she failed to file the claim in federal court within six months after the INS had denied her administrative complaint. Jones’s case involved a wrongful death action and a claim that the Federal Highway Administration had approved the installation of median crash barriers that had never been properly crash tested; the plaintiff filed the administrative claim with the FHWA more than two years after the fatal car accident. The Ninth Circuit had held that neither claim was necessarily untimely because both limitations periods were potentially subject to equitable tolling.
Affirming in both cases, Justice Elena Kagan wrote for a five-Justice majority that included Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. This was a “clear-cut case” based on statutory interpretation and prior precedent. Under Irwin v. Department of Veterans Affairs, statutes of limitations under laws waiving the United States’s sovereign immunity were subject to the same rebuttable presumption of equitable tolling as statutes of limitations in actions between private parties.
The United States attempted to overcome that presumption by showing that Congress had made the FTCA’s limitations period jurisdictional, an argument the majority emphatically rejected. Relying on the Court’s recent jurisprudence that has virtually uniformly defined most rules as non-jurisdictional, the majority insisted that nothing in the FTCA’s time-of-filing provision went to a court’s basic adjudicative power. Importantly, most time bars are non-jurisdictional, even when the bar is important, mandatory, or “emphatic.” Congress must “do something special” to enact a statute of limitations that is not subject to tolling — and it did “nothing of that kind” in the FTCA. Although the statute, 28 U.S.C. § 2401(b), speaks of a claim being “forever barred” if not presented within the applicable time frame, that is merely “mundane statute-of-limitations language,” “utterly unremarkable phrasing,” and an “ordinary (albeit old-fashioned) way of setting a deadline.” Using emphatic language in a timing provision does not affect its jurisdictional character. Quite the contrary, the majority insisted. Section 2401 speaks of the timeliness of the claim, not the jurisdiction of the court. It does not speak in “jurisdictional terms” or refer to or address the court’s powers. Moreover, the limitations period appears in a statutory provision different from the grant of jurisdiction; this provides a structural and contextual indication that the former does not go to the court’s jurisdiction, which is entirely controlled by the latter. It is true, of course, that tolling and jurisdictionality are distinct issues. Congress could provide that even a non-jurisdictional limitations period is not subject to equitable tolling. But, the Court insisted, the government here offered no independent arguments for why Section 2401 should not be subject to equitable tolling.
The government’s main argument for the FTCA being jurisdictional and not subject to tolling is that Section 2401 uses the same “shall be forever barred” language as in the statute of limitations governing contract and certain non-tort claims against the United States under the Tucker Act. The Court had held repeatedly that this limitations period was jurisdictional and not subject to equitable tolling, a position most recently confirmed by a seven-to-two Court in 2008 in John R. Sand & Gravel Co. v. United States. But the “forever barred” language is not why the Court continues to treat the Tucker Act limitations period as jurisdictional. Indeed, the “forever barred” language simply was a commonplace formulation for describing statutes of limitations at the time the Tucker Act was enacted, one which appears in many other limitations periods that are subject to tolling (notably the Clayton Antitrust Act). Rather, the Tucker Act’s statute of limitations remains jurisdictional solely because of stare decisis. John R. Sand merely left in place the Court’s prior construction of the Tucker Act; it did not stand for a general proposition that other limitations periods, even those involving waivers of sovereign immunity, are similarly jurisdictional and not subject to tolling. Thus, the Tucker Act is unique because of the Court’s prior Tucker Act decisions; it does not control as to similarly worded statutes lacking such prior decisional history. Notably, Justice Breyer, who wrote the opinion for the Court in John R. Sand, and Justice Kennedy, who joined it, both signed on to this understanding of that case, the Tucker Act, and other similar statutes of limitations.
Finally, the Court rejected the government’s argument that Section 2401 must be treated as jurisdictional because it conditions and limits a waiver of sovereign immunity and because it was enacted at a time when similar limitations on sovereign immunity also were treated as jurisdictional. Irwin had already rejected that position, applying the rebuttable presumption of non-jurisdictionality and tolling to an earlier-enacted waiver of sovereign immunity (in that case, Title VII of the Civil Rights Act of 1964). The majority declined to reach a different conclusion as to the FTCA. Indeed, the Court insisted that the argument cut in the other direction, because the FTCA “treats the United States more like a commoner than like the Crown” by granting jurisdiction and imposing liability on the United States to the same extent as if it were a private individual.
Justice Samuel Alito dissented, joined by the Chief Justice and Justices Antonin Scalia and Clarence Thomas — all of whom joined the John R. Sand majority. The dissent made three main points.
First, Justice Alito insisted that Section 2401 must be jurisdictional, as it was enacted as a tort-based analogue to the Tucker Act, waiving sovereign immunity through identical “forever barred” language that had long been interpreted, by the Supreme Court and lower courts, as jurisdictional. In enacting the FTCA, Congress must be assumed to have known of that universally recognized meaning and to have intended to follow that course. Second, even if Section 2401 is not jurisdictional, or if the Court prefers not to call it jurisdictional “with all that label entails,” it nevertheless is clear that Congress intended not to allow equitable tolling. “Forever barred” must mean something. It is “no weak-kneed command,” nor is it “qualified or aspirational.” These words are absolute and “brook no exceptions.”
Third, Justice Alito insisted that Irwin and its rebuttable presumption should play no role. For one thing, Irwin’s judge-made presumption, established in 1990, cannot trump the obvious meaning that Congress had in mind when it enacted the FTCA many years earlier. For another, Irwin’s presumption plays no role in determining whether a statute of limitations is jurisdictional; it applies only after finding that the provision is non-jurisdictional to decide whether Congress nonetheless intended to prohibit equitable tolling. In a footnote, the majority responded to the latter point. It insisted that it does not matter whether, in addressing a jurisdictional limitations period, one says that Irwin does not apply (the dissent’s position) or that Irwin’s presumption has been rebutted (the majority’s position). Everyone ends up in the same place. Because the government’s only argument against tolling was jurisdictionality, the majority argued, it made sense to use Irwin to address the tolling point. And Irwin required Congress to provide a clear statement of jurisdictionality, something it failed to do in the FTCA.