The Supreme Court of the United States recently decided Wong v. United States and June v. United States. Both cases dealt with the issue of equitable tolling of the statute of limitations.
June v. United States involves the failure of the plaintiff to file their administrative claim within two years of accrual of the claim. The plaintiff alleges that her failure resulted from fraud on the part of the Government. Wong v. United States involves the failure of the plaintiff to “file” his suit within six months of an agency denial. In short, the Mr. Wong asked the District Court to amend his private suit to include the United States as a defendant. The District Court failed to take action on Mr. Wong’s motion until three weeks after the FTCA’s six-month deadline.
Justice Kagan writes for a 5-4 majority, holding: “Today, we reject the Government’s argument and conclude that courts may toll both of the FTCA’s limitations periods.” Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined Justice Kagan’s opinion.
In the opinion, the Court relied on Irvin v. Dep’t of Veterans Affairs, which held that time bars in suits between private parties are non-jurisdictional and presumptively subject to equitable tolling. This is a rebuttable presumption: Congress, if it chooses, may decide to create a jurisdictional time bar. But the Government must clear a “high bar” to show that a time bar is non-jurisdictional. The Court, in analyzing the FTCA, found there was no clear language or legislative history to suggest that Congress intended the section 2401(b) to function as a limit on the Court’s jurisdiction.
The Court rejected the two arguments the Government made. First, the Government argued that section 2401(b) language “shall be forever barred” is also found in the Tucker Act, which the Court has found to be jurisdictional. The Court rebutted that the “shall be forever barred” language was “commonplace in federal limitations statutes,” which were found to be non-jurisdictional. Second, the Government argued that all time limits against the Government are jurisdictional. But the Court held that this couldn’t be the case because then the exception would swallow the rule. Indeed, the FTCA’s mandate that a government be treated in the same manner and to the same extent as a private individual suggested that the Irvin rule—which applied to private parties—should also apply to the United States.
Justice Alito filed a dissenting opinion, in which the Chief Justice, Justices Scalia, and Thomas joined. The dissent’s argument turns almost entirely on the analogy to the Tucker Act line of cases. Justice Alito argues that Congress borrowing the “forever barred” language from the Tucker Act indicates its intent that the statute is jurisdiction. And, even if it were not jurisdictional, the “forever barred” language suggests that intended to eliminate equitable tolling.