In United States v. June and United States v. Wong, the Court will revisit a recurring theme for the Roberts Court – identifying “jurisdictional rules,” as distinct from non-jurisdictional “claim-processing rules,” and determining whether time limitations should be subject to equitable tolling. These cases involve the Federal Tort Claims Act (“FTCA”) and the timing requirements for initiating administrative and judicial proceedings against the United States.
The FTCA (in 28 U.S.C. § 1346(b)) waives sovereign immunity for personal-injury and negligence claims arising from the conduct of federal employees acting within the scope of their office or employment, giving district courts jurisdiction over claims against the United States and rendering the U.S. subject to suit and liability to the same extent a private person would be liable under state law. Prior to filing suit, a plaintiff must present the claim to an appropriate federal agency and may sue only after the agency either has denied the claim or failed to resolve it within six months of filing. Under 28 U.S.C. § 2401(b), a tort claim “shall be forever barred” if not presented in writing to the appropriate agency within two years of its accrual or if an action in federal district court is not filed within six months of the agency’s denial or failure to act on that claim.
June arose out of a fatal 2005 car accident in Arizona; Marlene June, as conservator for the decedent’s minor son, filed negligence actions against a contractor and the state of Arizona over negligently approved and installed cable media barriers on the highway. June then sought to bring a claim against the Federal Highway Administration (FHWA), alleging that it negligently allowed Arizona to install those barriers, which had not been crash-tested. The claim was filed with the FHWA in December 2010, well over two years after the accident; June argued that the government had concealed facts about its approval of the barriers and that the court should equitably toll the limitations period or find that the claim did not accrue until April 2009.
Wong arose from a challenge to Kwai Fun Wong’s 1999 confinement and removal by the Immigration and Naturalization Service. She filed an action against various individual officers in federal court on May 18, 2001 and a timely FTCA negligence claim with the INS the same day or a few days later. On November 14, 2001, Wong filed a motion in district court for leave to amend her complaint to add the FTCA claim against the United States “on or after November 20,” the expiration of the six-month waiting period on administrative action. From this date, Wong would have had six months – until May 20, 2002 – to file the FTCA claim in federal court. On December 3, 2001, the INS finally denied Wong’s claim, initiating a new six-month period that expired on June 3, 2002. On April 5, 2002, the magistrate judge recommended that leave to amend be granted. The district judge adopted the magistrate’s findings and recommendation and granted leave to amend on June 25, 2002, three weeks after the later six-month deadline expired. Wong filed an amended complaint, including the FTCA claim, on August 13, 2002.
In Wong, a divided en banc Ninth Circuit held that Section 2401(b) was not a jurisdictional time limit and was subject to equitable tolling, applying the Supreme Court’s recent jurisdictionality cases. The majority found tolling appropriate in this case, because the delay in filing the FTCA claim was a product of the magistrate system and delays by the magistrate and district judge in granting leave to amend, rather than Wong’s dilatory behavior. In June, the district court had held that Section 2401(b) was jurisdictional and not subject to tolling, but the Ninth Circuit summarily reversed in light of its decision in Wong.
The Ninth Circuit’s approach was consistent with the Court’s trend in distinguishing jurisdictional from non-jurisdictional rules, the latter being non-mandatory and subject to equitable tolling in appropriate circumstances. This analysis treats a rule as jurisdictional only if it speaks in “jurisdictional terms,” using jurisdictional language and making clear in the statutory text, structure, or history that the limitations period is intended to affect the court’s root authority to hear a case. Two recent decisions – Sebelius v. Auburn Regional Medical Center and Henderson v. Shinseki – describe timing requirements as the “quintessential” non-jurisdictional “claim-processing” rules that promote orderly litigation by requiring parties to take certain steps at certain times. While that has been the Court’s trend, however, the two cases to go the other way in the past decade may be particularly salient in this case. The first is John R. Sand & Gravel Co. v. United States, in which the Court held that the six-year limitations period for filing non-tort monetary claims against the United States in the Court of Claims, pursuant to a waiver of sovereign immunity, is a unique, “more absolute” limitations period not subject to waiver. The other is Bowles v. Russell, in which the Court held that the time period for filing a notice of appeal from the district court to the court of appeals is mandatory and jurisdictional, even where the court caused the delay.
The government filed substantially identical briefs in the two cases, arguing that both the two-year period for filing the administrative claim and the six-month period for filing the judicial action are jurisdictional, mandatory, and not subject to equitable tolling.
The government begins with the “unusually emphatic” language of Section 2401(b): the claim “shall be forever barred” if not filed or submitted within the relevant time periods. This is the type of absolute language that allows for no exceptions and that appears to speak to the court’s adjudicatory authority. This also is the same emphatic language that appeared in earlier limitations periods governing non-tort monetary claims against the United States in the Court of Claims (under the Tucker Act and its predecessors); that limitations period has repeatedly and unequivocally been held to constitute a jurisdictional bar. The FTCA, enacted in 1946, was modeled on the Tucker Act; Congress deliberately adopted the same language, intending to grant district courts the same type of jurisdiction in tort claims as the Court of Claims exercised for non-tort claims. That jurisdiction included the absolute bar in the limitations period, such that the courts only had the power to hear timely claims. Although the current Tucker Act limitations period no longer contains the word “forever,” the Court’s decision in John R. Sand reaffirmed controlling precedent treating that period as jurisdictional, mandatory, and non-waivable.
Moreover, the purpose and effect of the FTCA (as with the Tucker Act) is to waive sovereign immunity. Section 2401(b) thus is more than a limitations period. It serves a broader systemic goal of defining and limiting the scope of the government’s waiver of immunity. The limitations period thus is a term of the consent to suit – the United States has consented to be haled into court only when the administrative claim is submitted within two years of the incident or the judicial action is filed within six months of the administrative rejection. Outside those time constraints, the government has not waived immunity and a court cannot apply equitable tolling to expand congressional consent to suit.
The subsequent history of the FTCA confirms the impermissibility of equitable tolling in the original text. In 1949, Congress extended the filing deadline to two years, while in 1966 Congress established the current two-tier structure of an agency claim filed by a judicial action. Both changes were made against the backdrop of Supreme Court and lower-court decisions cases treating the existing limitations periods as not subject to equitable tolling, as well as a similar legal position by the Department of Justice. Rather than equitable tolling, the way around both FTCA limitations periods in appropriate cases has been private laws permitting individual claimants to pursue otherwise-untimely tort claims against the government, all enacted with the understanding that only Congress has the power to waive those jurisdictional time limits through subsequent legislation.
In opposition, Wong and June hit similar beats. Both begin with Irwin v. Veterans’ Administration, in which the Court held that the filing periods under Title VII – for both administrative and judicial proceedings – were non-jurisdictional and subject to equitable tolling, even as applied to claims against the United States. Irwin establishes three principles. First, there is a rebuttable presumption that district courts retain their historic equitable powers and limitations periods are subject to equitable tolling. Second, this presumption applies to suits against the United States in the same way that it applies to suits against private defendants. Third, allowing equitable tolling does not broaden the waiver of sovereign immunity beyond what Congress already had unequivocally expressed. For FTCA purposes, the waiver of sovereign immunity is coextensive with the jurisdictional grant in Section 1346(b). District courts “shall have” jurisdiction, and thus sovereign immunity is waived, when the six elements enumerated in Section 1346(b) are satisfied. And nothing in the text of Sections 1346(b) or 2401(b) indicates a rejection of that rebuttable presumption.
Wong and June distinguish the Tucker Act cases, rejecting the argument that the FTCA must track its approach to timing limitations. The Court of Claims is a different type of tribunal: it often is regarded less as a judicial body than as an incident of Congress’s power to pay its debts, one lacking the power to grant equitable relief or the same long history of equity practice. Even if Congress intended the FTCA as the tort analogue to the Tucker Act, it is significant that Congress put FTCA cases in the district courts rather than the Court of Claims, given the former’s longstanding power to accord equitable relief. In defining the Tucker Act’s limitations period as non-waivable, the Court in John R. Sand insisted that ordinary principles about statutes of limitations do not apply to actions in the Court of Claims, given the unique nature of the tribunal. But it follows, Wong and June argue, that cases interpreting the statute of limitations for actions in the Court of Claims do not reflect congressional intent as to time limits for actions brought in district courts.
Wong and June then argue that Section 2401(b) is not jurisdictional under the Court’s recent clear-statement jurisprudence. The limitations period appears in a separate provision from the jurisdictional grant and the two do not cross-reference one another. Section 1346(b) does not speak of the timing of actions. Section 2401(b) makes no mention of the court’s jurisdiction and does not speak in jurisdictional terms of a court’s power; it instead speaks to parties about when they must bring their claims. Absent such jurisdictional language, filing deadlines are the “quintessential claim-processing rules” promoting orderly litigation by requiring parties to take certain steps at certain times. This is particularly true for state limitations periods on tort claims. Because the FTCA makes the United States liable for tort claims under state law “to the same extent as a private individual under like circumstances,” limitations periods that ordinarily are non-jurisdictional as to private individuals must be non-jurisdictional as to the United States.
Nor does the “forever barred” language in Section 2401(b) (and in prior versions of the Tucker Act) indicate jurisdictionality or non-tolling. That language speaks to the commonly understood and ordinary effect of a party’s failure to timely file, using common language to indicate that effect – the plaintiff will be barred from proceeding on her claim if it is untimely filed. But that language still does not speak to the court’s adjudicative power. And the effect of the failure to timely file does not indicate what the court may consider in determining whether the claim was timely filed – such as that the claim is not, in fact, barred because the statute is subject to equitable tolling.
Finally, Wong attempts to pull the FTCA out of the reach of John R. Sand and Bowles, the two recent decisions treating filing periods as jurisdictional. Both were explicitly stare decisis cases, with the Court declining to overrule more than a century’s worth of precedent, even when recent case law treated the jurisdictionality question differently. But the Court has never interpreted Section 2401(b) and there is no similar long-standing body of case law treating it as jurisdictional. John R. Sand and the precedent it sought to preserve, all addressing the Tucker Act and the Court of Claims, cannot be read so broadly as to apply to all limitations periods or even all limitations periods involving waivers of sovereign immunity, especially in light of Irwin.
Law professor Gregory Sisk, an expert on federal sovereign immunity and litigation against the federal government, filed identical amicus briefs in support of both Wong and June. Sisk begins from basic principles of sovereign immunity and the requirement that waivers be strictly construed. This analysis must distinguish between the actual waiver of sovereign immunity and the terms of litigation and liability against the sovereign following the waiver – in other words, Sisk argues, between “the threshold question of whether a waiver of sovereign immunity exists from subsequent questions as to how the terms of that waiver should be understood and applied.”
Thus, the threshold question is whether Congress consented to a type of claim and form of remedy, which must be subject to the narrow construction and jurisdictional treatment for waivers of immunity. Questions further from the center of that analysis – including procedural regulations of the mode of litigation – should not receive the same jurisdictional scrutiny. Statutory time limitations, which are presumptively non-jurisdictional in litigation against private individuals, fall in the latter category. Thus, contrary to the government’s argument, the United States in Section 1346(b) waived sovereign immunity as to all tort claims for damages arising from actions in the scope of federal officers’ office or employment, not only those tort claims that happen to be timely filed. The question of timing has nothing to do with the waiver, but only with how the claim should proceed against the United States, now treated as a private individual for litigation purposes.
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