Is the Federal Tort Claims Act’s six-month time limit for filing suit in federal court subject to equitable tolling?
Kwai Fun Wong, a Hong Kong citizen, filed an administrative claim against the United States under the Federal Tort Claims Act (“FTCA”), alleging that federal employees injured Wong during immigration detention. After an administrative denial, Wong sought to file her claim in federal court; however, the United States asserted that Wong filed the claim after the FTCA’s filing deadline and that Wong’s claim was therefore time-barred. The Ninth Circuit held that the claim was not time-barred because the FTCA’s filing deadline is subject to equitable tolling that excuses Wong’s late filing. The Supreme Court’s resolution of this case will affect the procedure litigants must follow before suing the United States government, which will also impact the flow of litigation against the United States in federal court.
Questions as Framed for the Court by the Parties
Whether the six-month time bar for filing suit in federal court under the Federal Tort Claims Act, 28 U.S.C. 2401(b), is subject to equitable tolling.
In 1985, Respondent Kwai Fun Wong, a Hong Kong citizen, lawfully entered the United States and, as a Tao minister, soon became a leader within the Wu-Wei Tien Tao Association (“Tien Tao”), a religious organization. In 1992 and 1994, Wong petitioned the Immigration and Naturalization Service (“INS”) for legal permanent residency, but abandoned her petition in 1999 when she returned to Hong Kong to attend the funeral of a former Tien Tao leader. On her return to the United States, the INS placed Wong on parole pending inspection; however, when Wong failed to appear for inspection, the INS revoked Wong’s parole and ordered her removal. Soon afterwards, the INS requested Wong’s appearance, and when she appeared, the INS seized and detained her for five days.
On May 18, 2001, alleging that during her INS detention Wong was stripped and cavity searched, denied vegetarian meals, and prohibited from accessing her attorney and followers, Tien Tao and Wong filed several claims against various INS officers in the U.S. District Court for the District of Oregon. Wong also filed a separate tort claim against the United States under the Federal Tort Claims Act (“FTCA”) with the INS because the FTCA requires a claimant to pursue administrative relief before suing the United States in federal court. The FTCA also requires that a claimant wait six months from the filing of a claim with an administrative agency, or until the agency denies the claim, before filing suit in a district court. Moreover, the FTCA provides that any claim not filed in a federal court within six months of the agency’s denial (or failure to rule after six months) “shall be forever barred.” In this case, Wong’s original FTCA court filing window opened November 19, 2001. On November 14, 2001, having not received an INS decision, Wong requested the district court’s permission to add her FTCA claim to her federal suit “on or after November 20, 2001.”
On December 3, 2001, the INS denied Wong’s claim, thereby requiring Wong to file her FTCA claim in federal court by June 3, 2002. On April 5, 2002, a magistrate judge recommended allowing Wong to add her FTCA claim to her federal suit; however, the district court did not adopt this recommendation until June 25, 2002, twenty days after the six-month filing deadline. Ultimately, Wong amended her federal complaint to include the FTCA claim on August 13, 2002, but the district court dismissed the FTCA claim, holding that the FTCA’s six-month deadline was “jurisdictional,” and therefore equitable tolling—i.e., allowing the claim to proceed despite late filing—did not apply.
Wong appealed to the U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”). The Ninth Circuit, sitting en banc, reversed and remanded the case to the district court, holding that the FTCA’s six-month filing deadline is not “jurisdictional,” and that equitable tolling applied in Wong’s case. The United States petitioned to the United States Supreme Court, which granted certiorari on June 30, 2014 to determine whether the FTCA’s six-month time limit for filing suit in federal court is subject to equitable tolling.
Under the FTCA, tort claims against the United States must be filed in court within six months after the claim has been denied by a federal agency or it will be “forever barred.” The central issue in this case is whether a judge may look to the equitable interests implicated in a plaintiff’s situation, such as the plaintiff’s diligence in bringing a claim or an “extraordinary circumstance,” and deem the FTCA’s time limit equitably tolled (i.e. stopped) for the purpose of allowing the plaintiff’s claim to go forward. The United States argues that FTCA’s time limit is jurisdictional and, even if non-jurisdictional, that Congress did not intend for equitable tolling to apply. On the other hand, Wong contends that the time limit is not jurisdictional, but rather a statute of limitations that is subject to equitable tolling.
THE APPLICABLE STANDARD: THE IRWIN PRESUMPTION VS. CONGRESSIONAL INTENT
The United States asserts that the Supreme Court’s holding in Irwin v. Department of Veterans Affairs favoring a general presumption of applying equitable tolling does not resolve this case. According to the United States, whether to apply the Irwin presumption hinges on Congress’s intent, rather than some independent authority, and thus “Congress’s intent to the contrary” would overcome the Irwin presumption. Moreover, the United States contends that the Irwin presumption is rebutted by the fact that a time limit created by Congress is jurisdictional—restricting a court’s power to hear a case. In this case, the United States argues, the time limit is jurisdictional and, even if non-jurisdictional, the Irwin presumption is rebutted by a “realistic assessment of legislative intent” expressed in the FTCA’s text and relevant legislative history.
In contrast, Wong argues that Irwin’s “general rule” favoring equitable tolling must govern this case and, absent a clear indication in the contrary by Congress, equitable tolling must be applied to the FTCA’s time limit. According to Wong, the Irwin presumption would otherwise become “meaningless” if the government could assert that a time limit was jurisdictional, and thus defeat the presumption, merely because the time limit applies to a claim against the government and involves sovereign immunity. Instead, Wong argues, the general presumption to allow equitable tolling for private litigants must apply in the same way to suits against the United States, precluding the United States from arguing for a “government-only” exception. Thus, Wong contends, the Irwin presumption bars the United States from making the argument that the FTCA’s language is jurisdictional based on sovereign immunity; however, the government can make other arguments to the extent that a private litigant would be able to make those arguments before a court.
INDICATION OF CONGRESSIONAL INTENT
FTCA’S LEGISLATIVE HISTORY AND SUBSEQUENT COURT PRECEDENTS
The United States contends that the “statutory text, history, and purpose” of the FTCA all indicate that Congress intended the FTCA’s time limit to be “jurisdictional” and without such jurisdiction, district courts would not have the constitutional authority to hear Wong’s FTCA claim to begin with, much less apply equitable tolling. Specifically, the United States argues that the language creating the time limit for claims under the FTCA—“shall be forever barred”—appears in other statutes, such as the Tucker Act. According to the United States, the Court has already interpreted these statutes as imposing a jurisdictional limit on the district courts in at least six instances. In light of these precedents, the United States asserts that Congress’s mirroring of such language in the FTCA indicates a clear intent to use the FTCA’s time limit as a jurisdictional limit, excluding the application of equitable tolling. The United States also cites historical evidence—such as additional amendments to the FTCA, subsequently enacted private laws overriding the FTCA’s time limit, and continued rejection of proposals to add equitable tolling provision—as support for the argument that Congress intended the FTCA’s time limit to be jurisdictional and that equitable tolling should not apply in this case.
On the other hand, Wong contends that the legislative and judicial history around the Tucker Act fails to support the United States’ argument that the phrase “shall be forever barred” had been repeatedly interpreted as jurisdictional. In fact, Wong asserts, the phrase was not included in the original Tucker Act, and was ultimately excluded from the most current version. Moreover, Wong argues that the line of court decisions cited by the United States as interpreting the phrase “shall be forever barred” as jurisdictional can be sufficiently distinguished because those cases did not focus on that specific phrase. Indeed, Wong explains that none of these cases, despite holding that the Tucker Act’s time limit as jurisdictional, give the words “barred” or “forever barred” any particular jurisdictional meaning in their analysis. Therefore, Wong argues that the cited cases fail to provide support for the United States’ position that the FTCA’s mirroring of the language in the Tucker Act indicates Congress’s intent to establish the time limit as a jurisdictional requirement. Wong also questions the clarity of the legislative record cited by the United States, pointing out that some records are decades removed from when the FTCA was enacted. Wong thus argues that overall, the cited record consists of “selective parsing” of a “scattered” legislative record, insufficient to demonstrate Congress’s clear intent.
INTERPRETATION OF THE STATUTORY LANGUAGE
The United States argues that the FTCA’s time limit language is “straightforward and direct,” indicating Congress’s clear intent not to apply equitable tolling to claims under the FTCA and to instead use the time limit as a strict jurisdictional requirement. Moreover, the United States contends that the absence of any exceptions or carve-outs to the FTCA’s time limit or any other tolling provisions in the FTCA indicate a “deliberate choice” by Congress, showing Congress’s intention to preclude equitable tolling.
In opposition, Wong argues that the time limit language used in FTCA is commonly seen in other similar statutes. Specifically, Wong contends that the statutory features pointed out by the United States as indicating Congress’s clear intent to limit equitable tolling—such as the limitation on late claims, permanent exclusion of such claims, and the unambiguous nature of the language—are all usually incorporated into the language of statutes of limitation in other similar statutes. According to Wong, given that that there is no inconsistency in the text and that equitable tolling usually applies to statutory limitations, it is presumed that Congress intended for equitable tolling to apply here.
OTHER BACKGROUND PRINCIPLES
The United States contends that Congress enacted the FTCA with the background principles of sovereign immunity in mind. For instance, the United States asserts that the Court’s numerous precedents affirm that federal statutes of limitation, such as the one in the FTCA, historically have been considered conditional limitations on the United States’ waiver of sovereign immunity. The United States submits that this is because statutory provisions limiting the scope of the United States’ ability to consent to being sued ultimately determines whether a court has the authority to hear that suit against the United States. Taking into account previous Court cases regarding the FTCA as a waiver of sovereign immunity and Congress’s knowledge of the Court’s background principles, the United States argues that the FTCA time bar is a condition on the waiver of sovereign immunity and thus is jurisdictional in character.
Wong, on the other hand, submits that there is a presumption that statutes of limitation are non-jurisdictional. Wong argues that because jurisdictional requirements impose special burdens, Congress must clearly indicate that a limitation is jurisdictional. Moreover, Wong asserts that the Court has adopted a bright line for determining whether a statutory limitation is jurisdictional. In particular, Wong contends, the Court has held that “claim-processing rules” (i.e. rules requiring parties to take particular procedural steps) are not typically jurisdictional. According to Wong, the FTCA’s time limit in this case “reads like an ordinary, run-of-the-mill statute of limitations” and, based on its placement, looks like a claim-processing rule; thus, the FCTA’s time limit is non-jurisdictional.
This case provides the Supreme Court (“Court”) with the opportunity to decide whether the FTCA’s six-month time limit for filing suit in federal court against the United States government is subject to equitable tolling—a procedural tool that allows a suit to proceed despite untimely filing. The United States argues that the FTCA’s time limit is a matter of jurisdiction that is not subject to equitable tolling. On the other hand, Wong contends that, rather than a matter of jurisdiction, the FTCA’s time limit is an ordinary statute of limitations that is subject to equitable tolling. The Supreme Court’s decision in this case implicates the ability of individuals to sue the United States government for injuries and the manner in which courts must adjudicate such suits. This case is also important, given, as Professor of Law Kevin M. Clermont (Cornell Law School) notes, the sheer number of lawsuits that individuals file against the United States government.
JUDICIAL EFFICIENCY VERSUS SOVEREIGN IMMUNITY
Wong and amicus Professor of Law Gregory C. Sisk (“Sisk”) argue that construing the FTCA’s time limit as a matter of jurisdiction, and thus precluding equitable tolling would severely burden the courts. Specifically, Sisk argues that because courts must consider jurisdictional issues regardless of whether either party raises such an issue, construing the FTCA’s time limit as jurisdictional would drastically affect the court’s role in adjudicating such a suit. Relatedly, Wong expresses a concern that if the FTCA’s time limit is jurisdictional, then the FTCA’s time limit can be raised at any time, even by a party that has previously conceded it. Wong posits that this can unsettle litigants’ understanding of the legal system and waste adjudicatory resources.
Conversely, the United States contends that Congress, in waiving its sovereign immunity, specifically intended the FTCA’s time limitation to be a matter of jurisdiction not subject to equitable tolling. According to the United States, the doctrine of sovereign immunity requires that the government consent to a suit before a court can adjudicate that suit. In this case, the United States believes that Congress decided to waive sovereign immunity, and thereby consent to FTCA suits, only on condition that courts would strictly construe the FTCA’s time limit.
FAIRNESS TO LITIGANTS
Sisk argues that Congress enacted the FTCA in order to “place the United States on equal footing with private parties.” Moreover, Sisk argues that the FTCA’s purposes require that courts treat the government as a private litigant despite the government’s interest in limiting the loss of public funds due to FTCA suits. Additionally, Wong points out that a strict construal of the FTCA’s time limit would create a “Catch 22” in cases where the opposing party delays the ability of a litigant to file. On this note, Professor Clermont believes that the facts of this case are particularly sympathetic for equitable tolling, given that the district court did not grant Wong’s prompt request to add her FTCA claim to her federal suit after the time limit expired, but then later dismissed her claim for filing after the deadline. Also believing the facts in this case to be particularly sympathetic, the American Association for Justice, in support of Wong, considers equitable tolling to be a procedural safeguard preventing the “deprivation of [a] plaintiff’s due process rights.”
The United States counters that equitable tolling is inapplicable to this case or to the FTCA’s time limit generally because Congress, rather than the courts, retains the authority to determine when to allow extended filing periods. Specifically, the government submits that even “some discretion” for the courts to determine when to disregard the FTCA’s time limit would be impractical. Moreover, the government notes that Congress, in passing the FTCA, believed a claimant with a particularly sympathetic hardship could seek a private bill from Congress that would afford the claimant relief without seeking relief from the courts, thereby avoiding the FTCA’s time limit altogether.
In this case, the Supreme Court will consider whether the Federal Tort Claims Act’s filing deadline is subject to equitable tolling. Wong contends that the time limit is a statute of limitations that is subject to equitable tolling. Conversely, the United States argues that FTCA’s time limit is jurisdictional and, even if non-jurisdictional, that Congress did not intend for equitable tolling to apply. The Court’s decision will impact the flow of litigation against the United States in federal courts.
The authors would like to thank Professor Kevin M. Clermont for his insights and assistance.
- Tim Hull: Striped-Searched Minister Can Press Tort Case, Courthouse News Service (Oct. 9, 2013).
- Carl Smith: Supreme Court’s Likely Review Of Rulings Equitably Tolling FTCA Claims May Impact Tax Refund Suits, Procedurally Taxing (May 1, 2014).