UNITED STATES v. KWAI FUN WONG
Kwai Fun Wong, a citizen of Hong Kong and leader of the Wu Wei Tien Tao religious organization, was arrested and deported by the United States Immigration and Naturalization Service (INS) for unlawful entry into the U.S. Prior to her deportation, Wong was briefly detained by the INS, during which she claimed to have been treated negligently by the INS. Under the Federal Tort Claims Act (FTCA), no civil suit may be filed against the United States unless the claimant has first filed a claim with the relevant federal agency and that claim has been denied.
Following denial, a claimant has six months to file suit or the suit is permanently barred. Wong filed a claim with the INS and, following the denial of that claim, sought leave from the district court to add a civil claim against the U.S. to her already outstanding suit against a number of federal officials. For unexplained reasons, the district court did not allow Wong to amend her complaint until seven months later, after the six-month deadline had passed. The district court then dismissed Wong’s federal civil complaint and held that the six-month deadline was “jurisdictional” and thus not subject to equitable tolling, or delaying the time at which a statute of limitations begins to run. The U.S. Court of Appeals for the Ninth Circuit reversed and found that equitable tolling could be applied to the six-month deadline.
This case was consolidated with United States v. June, a case in which the conservator (financial manager) of an estate argued that the two-year statute of limitations for filing suit under the FTCA should not have begun to run until she had access to the depositions of federal employees without which she could not have been aware of her claim against the federal government. As in Wong, the federal government claimed that this statute of limitations was “jurisdictional,” and thus not subject to equitable tolling. The district court agreed with the federal government and dismissed the suit. The U.S. Court of Appeals for the Ninth Circuit reversed and held that equitable tolling was appropriate based on its earlier opinion in Wong v. Beebe.
Are the Federal Tort Claims Act’s statute of limitations provisions subject to equitable tolling?
Legal provision: Federal Tort Claims Act
Yes. Justice Elena Kagan delivered the opinion for the 5-4 majority. The Court held that, as in suits between private parties, there is presumption that equitable tolling is available for suits against the federal government. That presumption may be rebutted by evidence that the statute of limitations is jurisdictional, as the government attempted to show in these cases. Because such a determination would completely deprive a court of the authority to hear a case, the Court will only find that the time limitation is jurisdictional if Congress has clearly intended that result. The Court held that the Federal Tort Claims Act (FTCA) does not provide any such clear statement that Congress intended the statute of limitations provisions to be jurisdictional.
Justice Samuel A. Alito, Jr. wrote a dissenting opinion in which he argued that the history of the FTCA and its statutory language indicate that the statute of limitation provisions are not subject to equitable tolling. Because the FTCA waived the federal government’s sovereign immunity, Congress placed strict limits on situations in which the federal government might be subject to liability. The statute of limitations provisions at issue in these cases are examples of such protections against extensive governmental liability and have been interpreted as such. Even if the statute of limitations provisions are not jurisdictional, Justice Alito argued that they should still be interpreted as inflexible based on the statutory language and therefore not subject to equitable tolling. Chief Justice John G. Roberts, Jr., Justice Antonin Scalia, and Justice Clarence Thomas joined in the dissent.
ORAL ARGUMENT OF ELIZABETH PRELOGAR ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We will hear argument next this morning in Case 131075, United States v. June.
Elizabeth Prelogar: Mr. Chief Justice, and may it please the Court:
There is good reason to believe that Congress did not want the equitable tolling doctrine to apply to the FTCA time bar, and I'd like to begin by focusing on a few of the issues that arose last hour that are particularly important to understanding Congress's intent.
To start with the questions, Justice Scalia and Justice Kagan, that you were asking at the end about the nature of our rule and what separates this statute from other statutes.
I want to be very clear: We're not urging a categorical rule about all pre-Irwin statutes.
Here, we have statute-specific evidence about the FTCA that makes clear that Congress did not want this particular enactment to be subject to equitable tolling.
And that's most clear, of course, from the plain text and those 12 words,
"Every claim against the United States cognizable shall be forever barred unless. "
that was lifted, Justice Scalia, as you said verbatim from the Tucker Act context where it had been repeatedly interpreted as a jurisdictional limit not subject to tolling.
Justice Elena Kagan: Ms.--
Chief Justice John G. Roberts: You don't doubt that if -- if those words appeared in a statute that Congress passed tomorrow, we would not interpret them as a jurisdictional bar, would we?
Elizabeth Prelogar: Mr. Chief Justice, I think it would depend on whether there was an indication that Congress was intending to incorporate those words from the Tucker Act context.
Justice Ruth Bader Ginsburg: I thought at least if a statute passed tomorrow, we have the clear statement rule that we have said -- we have told Congress if you don't want to have any tolling, if you want this to be jurisdictional, absolutely rigid, you say so, and of course, Congress, it's your call.
But we're not going to interpret a statute that doesn't make that clear statement as jurisdiction.
Elizabeth Prelogar: But this Court has also emphasized, Justice Ginsburg, that there are no magic words that are required in this context.
And I think Bowles v. Russell makes that particularly clear.
There, those words, “ shall ” and “ notice of appeal ”, were interpreted to have jurisdictional import.
And so to here in this context--
Justice Ruth Bader Ginsburg: Because this Court had before -- had before said that provision about how much time you have to appeal, that that was jurisdictional.
And I thought the Court's position was we decided it once, and we're going to stick with it.
But if we haven't decided it, then we look at it.
We look for a clear statement.
Elizabeth Prelogar: --It was not only Section 2107 in -- in that context, but also predecessor provisions and other similar statutory requirements.
And that's what the Court said in Henderson, when a long line of this Court's decisions interpreting similar requirements have said that those requirements are jurisdictional, then we'll presume that Congress intended the same meaning.
Here, we have the identical language that had that jurisdictional label attached to it.
Justice Ruth Bader Ginsburg: I don't I don't quite get the identical language because “ shall be barred ”, I mean, that's common to a lot of statute of limitations.
You're not suggesting that this would be different if it just said “ shall be barred ” rather than “ forever barred ”, are you?
Elizabeth Prelogar: --No.
We're saying that when Congress lifted and incorporated word for word the then-prevailing Tucker Act time bar, it clearly was signaling an intent to incorporate the judicial interpretations of that Tucker Act time bar.
And -- and, Justice Ginsburg, I -- I think this is an important point about those early Tucker Act cases.
Those were not drive-by jurisdictional rulings.
Those were carefully considered decisions that attached jurisdictional consequences to the -- the Tucker Act time bar and said that it couldn't be waived.
It wasn't subject to equitable tolling.
So this wasn't a -- an argument that was made in passing or something that the Court didn't carefully consider.
Rather, the Court made a -- a decision in those cases that that language had jurisdictional import.
Justice Elena Kagan: --Ms. -- Ms. Prelogar, I'm wondering what you think about Mr. Schnapper's analogy to the private right of action cases, because it seems to me very similar is that we're dealing in an area here in which Congress doesn't generally say what it wants with respect to some kind of procedural rule, maybe because Congress doesn't usually think about it.
And we have one set of interpretative rules to deal with that situation, and then those interpretative rules basically switch off and we get the opposite set of interpretative rules.
And the way it's worked in the private right of action cases, we don't look back and say, well, gosh, you were enacting this statute in the world of Cort v. Ash, and you used language that was identical to language that the Court assumed gave rise to a private right of action there, and so you get a private right of action, too.
We've not said that.
We've said, you know, now we're in a different world and we're going to require more of you than what the old -- than the old language that gave rise to a private right of action under Cort.
Why is this any different?
Elizabeth Prelogar: Justice Kagan, this Court has said in the implied private right of action context that you have to look at the contemporary legal context.
That was the Cannon case that we cite in our opening brief and our reply brief.
And this Court, in Alexander v. Sandoval, made clear that -- that those holdings hinged on the fact that Congress had acquiesced in the decision that had prevailed at the governing time.
Justice Anthony Kennedy: Were -- were those--
Justice Antonin Scalia: Didn't our cases--
Justice Anthony Kennedy: --were those two cases pre or -- that you just cited pre or post-Irwin?
Elizabeth Prelogar: Well, I was talking about the private right of action cases, Justice Kennedy.
So with respect to statutes that -- that predate Irwin, if you actually look at how Irwin has fared and what the Irwin scorecard is, more often than not, this Court has held that there isn't equitable tolling in suits against the government.
The Court's considered that in five cases, and in four of them, Brockamp, Beggerly, John R. Sand & Gravel, and Auburn Regional Medical Center, it's held that the presumption, if it applies, is rebutted.
So I think--
Justice Antonin Scalia: --Didn't -- didn't the private right of action cases suggest rather strongly that Cort v. Ash was wrong?
That the prior notion that when Congress says nothing about it, there is an implied cause of action was wrong?
Elizabeth Prelogar: --That's true, Justice Scalia.
Justice Antonin Scalia: And have we -- have we said that prior notions of what Congress meant in the past about jurisdiction were wrong at the time?
Elizabeth Prelogar: No, not at all.
And I think that is--
Justice Antonin Scalia: So I don't think the two are parallel at all.
Elizabeth Prelogar: --And it's an important point here that there's no question that when Congress was enacting the FTCA in 1946 and at all relevant times thereafter, when it was making changes to this time bar, it -- it did view that as a jurisdictional limit, and the Court has never questioned that historical--
Justice Ruth Bader Ginsburg: That was that was the way everything was involving the government and sovereign immunity was all, quote, “ jurisdictional ”.
And then we said -- and if -- if Congress made a statute, we said, well, we call that jurisdictional.
Congress never called it jurisdictional.
Then we took a fresh look at this, and we said that's -- that's an exorbitant use of the word “ jurisdiction ”.
Sure, you can have a -- you can have a statute that has a very tight time line; that doesn't mean it's jurisdictional.
Elizabeth Prelogar: --Justice Ginsburg, let me respond to that by -- by taking a moment to emphasize the history of the FTCA, because I think it's perfectly clear that Congress at every turn, at every relevant historical juncture, signaled its approval of the view that this time bar was jurisdictional and could not be tolled.
Congress has made significant changes to the time bar four times: In 1946, 1949, 1966 and 1988.
And at each of those times, Congress's words and actions were either inconsistent with or unnecessary in light of an equitable tolling doctrine.
I could just tick through them.
In 1946, Congress enacted the FTCA time bar and expressly declined to include a tolling provision, even though it had considered earlier bills that did include that kind of tolling provision, which, as this Court has said, it was a deliberate choice, rather than an inadvertent omission.
In 1949 Congress was aware that there had been individual cases of hardship and debated in one of the hearings whether to create a reasonable cause exception.
Instead of doing so, Congress decided to extend the deadline from 1 year to 2, which would have been unnecessary if equitable tolling could take care of the hardship.
1966 is particularly important because at that point there were 2 decades of experience with the FTCA and every lower court to consider the issue had held that it was jurisdictional and not subject to tolling.
Congress was aware of those decisions because repeatedly litigants came to it during that time period and requested relief in the form of a private bill.
And there, Justice Ginsburg, Congress did use that magic word “ jurisdictional ”.
Congress repeatedly grated relief through private laws that conferred jurisdiction on district courts notwithstanding the time bar in Section 2401(b).
Finally, in the--
Justice Ruth Bader Ginsburg: Well, it was responding to our cases that use “ jurisdiction ”.
Elizabeth Prelogar: --And acquiescing in those cases, I would argue, when Congress then, in 1966, reenacted the time bar without making any material change.
Congress was aware that this is how courts were interpreting the -- interpreting the time bar, and this Court itself had just recently announced in Soriano that the Tucker Act time bar and that language was jurisdictional, not subject to tolling, and Congress acted in reliance on those decisions when it reenacted the bar in '66.
Finally, in 1988, this was when Congress enacted the Westfall Act.
At that point in time there was a particular situation of hardship that had arisen when a claimant had sued a Federal employee and then the United States was substituted as a defendant after the time had run to present a claim to the administrative agency.
Justice Ruth Bader Ginsburg: Ms. Prelogar, I do think that the -- the other side's account, Mr. Schnapper's account of the Westfall Act, the one that Congress was intending to benefit was not the plaintiff, not the injured plaintiff.
It was the Federal employee, because until Westfall v. Erwin, the Federal employee was off the hook.
He wasn't -- so then when this Court, said, Federal employee, you are going to be stuck, then Congress passed a relief measure for the Federal employee, not -- not the plaintiff.
Elizabeth Prelogar: It's absolutely the case, Justice Ginsburg, that that was the overall purpose of the Westfall Act.
But Congress included Section 2679(d)(5), which was the provision that gave the claimant extra time to present a claim, 60 extra days, if the claimant was out of luck because the time of the statute had run by the time the United States was substituted as a defendant.
And that exception that Congress introduced in 1988 would have been entirely unnecessary if Congress thought that courts could take care of this on a case-by-case basis through equitable tolling.
So I think that the historical story here is consistent and it's clear.
At every turn--
Justice Sonia Sotomayor: You are equating reasonable cause or -- or something comparable with equitable tolling.
Equitable tolling, as Justice Ginsburg pointed out earlier, is much harder to get.
Elizabeth Prelogar: --That's absolutely true, Justice Sotomayor, that it might be hard to get it in an individual case.
But -- but I think that it's clear, and this again comes from the Tucker Act line of cases, that Congress did view this as a -- a strict limit on the waiver of sovereign immunity, and that Congress had a right to suggest that it didn't even want to extend that waiver one bit more.
Justice Sonia Sotomayor: Could I ask a question?
You've both been arguing this as if your situations are identical.
But do you disagree with the Respondent here who says that -- who characterizes the administrative claim process under the FTCA as claimant friendly?
Elizabeth Prelogar: Certainly that process is claimant friendly, but when the Court has emphasized that concern in other cases, and I'm thinking here of Bowen and Henderson, the Court was looking specifically at the time bar and whether it was claimant friendly.
In Bowen, the time bar itself had a provision that allowed the secretary to extend out the limit for appealing a Social Security benefits denial, and the secretary had interpreted that to encompass principles of equity and fairness.
In Henderson, when the Court emphasized the claimant-friendly nature of the procedural posture of that case, the Court emphasized that there was no time limit at all for a veteran to present his claim.
So in those cases it was the time bar that was claimant friendly.
And here we don't have that at all.
We have a strict, absolute limit that has no -- no space within the text to permit any -- any notions of claimant friendliness.
So I think that is a relevant distinction between those cases where it has made a difference and where it has not.
Justice Elena Kagan: Ms. Prelogar, I asked Mr. Martinez a question before and, to tell you the truth, I've just forgotten his answer to it, so I'm going to ask you.
How about 2401(a)?
Elizabeth Prelogar: The government's position is that 2401(a) is jurisdictional, but I want to say at the outset that each statute has to be interpreted on its own terms--
Justice Elena Kagan: Well, why is 2401(a) jurisdictional if every statute has to be you know, Mr. Martinez said it's those exact 12 words, and 2401(a) doesn't have those exact 12 words.
Elizabeth Prelogar: --2401(a) originated in the Tucker Act itself in 1887 and, based on that Tucker Act historical pedigree, we think that the same interpretation of it that was longstanding would -- would govern here in this context.
Justice Elena Kagan: Is there -- is there any statute of limitations that applies against the Federal government that you don't think is jurisdictional?
Elizabeth Prelogar: --Other than the ones that this Court has has already ruled upon, I can't think of any off the top of my head.
But I have to confess that I haven't done an extensive statute-specific analysis with respect to all of them.
Justice Stephen G. Breyer: Well, if that if that's all--
Justice Antonin Scalia: Have you stopped beating your husband, right?
Justice Stephen G. Breyer: --If, in fact -- you've heard this already, but I'd like your specific answer to it.
In Irwin, Chief Justice Rehnquist says, we -- a waiver of -- they are holding a new rule.
He says that.
He says that we now -- a waiver of sovereign immunity cannot be implied, but must be expressed.
Once Congress has made such a waiver, all right, we think that making the rule of equitable tolling applicable to suits against the government in the same way that it is applicable to private suits amounts to little broadening.
Such a principle -- da, da, da -- and that's what we hold.
Now, has not the Court, I'm not sure, applied Irwin to statutes that were enacted before Irwin?
Elizabeth Prelogar: It has, Justice--
Justice Stephen G. Breyer: Now, if, in fact, we were to hold with you in this, how would we justify that?
I mean, this is a statute that -- that, as much as any, is trying to equate -- waives sovereign immunity, trying to equate private suits against private people with suits against the government.
So if some times Irwin applies to a pre-Irwin statute, when no one in Congress thought that they would be doing that, why isn't this case in that?
Elizabeth Prelogar: --Well, let me be--
Justice Stephen G. Breyer: I know you've given many, many answers, but the answers that I hear are all answers that Congress at the time probably thought that equitable tolling wouldn't apply.
That is probably what they thought, if they thought about it.
But the same is probably true of dozens of statutes that were passed pre-Irwin.
So what's the distinction?
Because Rehnquist says we now are laying down -- we think this case affords us an opportunity to adopt a more general rule.
He thinks he is applying a new rule.
And -- and that's applying to prior statutes.
So why not this one if it's any?
Elizabeth Prelogar: --Irwin adopted that rule because it judged it to be a realistic assessment of legislative intent.
But Irwin made clear that it's a rebuttable presumption.
As this Court said in John R. Sand & Gravel, it's not conclusive, and it can be over--
Justice Stephen G. Breyer: I agree with you that Irwin does say it is likely to be a realistic assessment of legislative intent.
That is one reason given among others.
If I don't agree with you, that that was meant to be absolute rather than simply a factor in the mind run of cases, suppose I don't accept your argument there, then I would have to apply it to this statute; right.
Elizabeth Prelogar: --And we agree that the presumption applies at the outset.
At the threshold the government has the burden--
Justice Stephen G. Breyer: I know, and what you're saying is that there are certain things that rebut it.
But all those things, it seems to me, come down to saying, as I just said, that Congress, at the time, thought there wouldn't be equitable tolling.
And that's why I asked this question.
That would seem to me to be true of many statutes, if not all of them, passed before Irwin, and yet we have applied Irwin backwards.
Elizabeth Prelogar: --It may well be, Justice Breyer, that it's easier for the government to rebut the presumption with respect to pre-Irwin statutes because, of course, under Irwin this Court does have to consider what the prevailing and contemporary legal context was at the time the statute was enacted.
Holland makes that clear where it suggests that the presumption has greater force as applied to statutes enacted after Irwin.
Justice Ruth Bader Ginsburg: But every statute that it applied to in Irwin was enacted, how many years, 18 years before Irwin.
Elizabeth Prelogar: In 1972.
That's correct, Justice Ginsburg.
Of course, there is a relevant change in the law that happened in that time period.
In 1967 -- this is, of course, after the FTCA had been reenacted -- this Court decided Honda v. Clark.
That was the first decision holding that there could be equitable tolling in a suit against the government.
And so, by the time Congress enacted Title VII in 1972, it was legislating against a backdrop where there wasn't a uniform line of precedence from this Court saying that every statute waiving sovereign immunity was necessarily subject to tolling.
I think the important point here -- and this comes from Honda v. Clark as well -- is an observation about the mode of statutory interpretation that we're urging.
In Honda v. Clark the reason the Court reached that conclusion that there could be equitable tolling notwithstanding the sovereign immunity considerations, is because the statute in that case, the Trading with the Enemy Act, had been expressly patterned after the Federal Bankruptcy Act.
And this Court said that lower courts had interpreted the Bankruptcy Act to permit equitable tolling.
And so, the Court said that the Trading with the Enemy Act should be interpreted the same way.
That's precisely the argument we're making here.
It's an argument about how Congress would have understood these words when it took them directly from the Tucker Act context and imported them into the FTCA.
I would like to make a brief observation about respondent's primary effort to distinguish the Tucker Act cases.
And this is the distinction that respondent draws between the court of claims and district courts.
Respondent says that those tribunals exercise fundamentally different powers when it comes to equitable tolling.
But that would radically alter how this Court has long understood the court of claims' powers.
As we explained in our reply brief, all of respondent's cases deal with the issue of equitable remedies.
Whether the court of claims can issue an injunction.
No, it can't, but that's also true of district courts applying FTCA claims.
There the district court is only considering a claim for money damages.
And the important point is this Court has never distinguished between the powers of the court of claims and powers of district courts with respect to equitable doctrines, equitable recoupment, equitable reformation of a contract, the equitable doctrines of latches and estoppel.
Down the line, the Court has indicated that the court of claims has those powers equally with district courts.
So there is simply no tenable basis to say that that tribunal-focused analysis creates a difference between the presumptions that should apply with respect to equitable tolling.
It also doesn't do anything to explain this Court's Tucker Act cases.
If, in fact, respondent were right and this was a function of the tribunal, then what this Court could have said in those cases is, here is a statute administered by the court of claims; thus, there's no equatable tolling.
But, of course, that's not what this Court did in Kendall, Finn, Soriano, John R. Sand & Gravel, the entire line of cases.
Instead, those cases turned on the text of the time bar and the fact that this was a waiver of sovereign immunity and that Congress intended that waiver to be interpreted narrowly.
And, Justice Breyer, to your point about how equitable tolling rarely applies -- Justice Ginsburg, I think you mentioned this as well -- I do think it's important to look at this historical context and what this meant for Congress in 1946.
And by today's light it's not a particularly big deal to sue the United States in its own name for money damages, but when Congress enacted the statute in 1946 it was an incredibly big deal.
And, in fact, it took Congress two decades of debating this bill to even grow comfortable with the idea and to get everyone on board with waiving the sovereign immunity of the United States for tort actions.
The Federal government was out ahead of the states in this.
The house report that accompanies the 1946 legislation notes only four states that had waived their sovereign immunity for tort claims.
By 1969, it was only 17 states that had fully waived their sovereign immunity, only four of which, by the way, permitted any form of tolling.
So I think it's pretty clear that when you look at the statute and you look at what Congress intended in 1946, those were the factors that motivated it, this was a strict condition on the waiver of sovereign immunity and Congress intended it to be interpreted narrowly.
If there are no further questions I would like to reserve the remainder of my time.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF E. JOSHUA ROSENKRANZ ON BEHALF OF THE RESPONDENT
E. Joshua Rosenkranz: Mr. Chief Justice, and may it please the Court:
All of the arguments that you heard in Wong apply with equal force to our case; that is, Mr. Schnapper's arguments.
But they apply with extra force with respect to the administrative presentment requirement.
And the inclusion now of an administrative presentment requirement actually sheds some light on what Congress must have meant with respect to the filing provisions.
So there are additional reasons with respect to administrative presentment, and a lot of the arguments that the government has been making, particularly in the first argument in Wong, simply don't apply to 1966 or to administrative presentment.
So Ms. Prelogar says 1966 was important.
It was important.
As of 1966, this scheme looked like a completely different scheme from the scheme that Congress passed in 1946.
The Tucker Act, the suit filing deadline runs from accrual.
There's no presentment requirement.
The statute of limitations for filing a lawsuit is six years from accrual.
There are statutory disability provisions.
FTCA, the suit-filing deadline now runs from an agency action, from the final determination.
Presentment is required.
The statute of limitations for filing the lawsuit is now six months from the agency action and there are no listed exceptions.
Now, the context is fundamentally different than for the presentment provision and now for the entire FTCA statute of limitations, but let me just talk first about presentment.
So the central -- first of all, the central focus of presentment is informality, is flexibility.
You fill out a one-and-a-half page form.
You literally handwrite into little boxes.
It takes 30 minutes to fill out.
If you send it to the wrong agency, no big deal.
The Department of Justice sends it on to the right agency.
And the administrative process that is triggered by that filing is not what anyone would view as an adjudication.
The statute says it's about settlement, it's about negotiations.
To Justice Breyer's point, you're usually unrepresented by counsel.
And the notion and DOJ says specifically in its regulations that what is supposed to happen are,
"Informal discussions, negotiations and settlement rather than any formal or structured process. "
The notion of applying a rigid, indeed jurisdictional rule to that very informal process, flies in the face of the whole informality that Congress set up for the suit-initiating process.
Justice Sonia Sotomayor: And without need to say, there were no prior cases talking about whether this was equitable tolling under the Tucker Act because there was no such thing.
E. Joshua Rosenkranz: --That is exactly right.
The -- the presentment requirements all came into play in the '60s.
They were never applied to the Tucker Act.
This was part of a spate of new law so the backdrop law against which this is being interpreted, all we have now, not when Congress passed it, but all we have now is Zipes.
Now, all of the -- all of the criteria that I was ticking off as to what the statute of limitations looked like, it looks like Title VII.
In Zipes this Court tells us -- that is the statute of limitations in Title VII -- in Zipes this Court tells us that the presentment requirement is not subject to equitable tolling.
So that's the second point--
Justice Antonin Scalia: Mr. Rosenkranz, so I understand you, are you arguing that tolling applies to the presentment provision even though it doesn't apply to other provisions?
E. Joshua Rosenkranz: --No, Your Honor.
Justice Antonin Scalia: Is it possible for us to hold that?
E. Joshua Rosenkranz: That is not what I'm arguing, Your Honor.
What I'm arguing is tolling has always applied, certainly, to this statute, certainly under Irwin for reasons that I will explain in a little bit.
But when Congress reenacts this in 1966, it makes abundantly clear that that conclusion is correct.
Because now we've got this presentment requirement, which I think refreshes congressional intent with respect to what it was thinking on jurisdiction.
But -- but I will circle back to this in a moment as I said, but I agree with everything Mr. Schnapper said.
In 1946 it was also not jurisdictional for the--
Justice Antonin Scalia: I don't know what you mean by “ refreshes congressional intent ”.
We have a fairly rigid doctrine that repeals by implication are not favored.
And are you saying that intent was “ refreshed ” so that even if Congress originally thought this was jurisdictional in the narrow sense, it now no longer is because of the adoption of the presentment provision?
E. Joshua Rosenkranz: --I am not, Justice Scalia.
Let me just be clear.
Our position is from 1946 on, it has always been subject to equitable tolling, it has never been jurisdictional.
But to the extent that anyone doubts that -- because as Justice Alito points out, Congress wasn't thinking about any of this, so all we are talking about is a battle of presumptions.
We have two clear statement rules.
And I grant you, Justice Scalia that there's also another clear statement rule with respect -- or another presumption, that is, with respect to choosing language from another source, which I will also get to in a moment, but let me just, if I may, finish on presentment.
The third point I was going to make is that as originally drafted, this presentment requirement was never a requirement.
It was in the original FTCA.
It was permissive.
So with respect to repeals by implication, what happens next is Congress makes it a requirement.
And the presumption then, or the Government's position then, as I understand it, is, when Congress turned it in -- turned it from permissive to a requirement, Congress also made that requirement both jurisdictional and impervious to the age-old doctrine of equitable tolling.
Next point, this Court has never ever found that an administrative presentment provision is jurisdictional or overcomes the presumption in favor of equitable tolling.
And that really is a version of the point that Justice Sotomayor was making.
Fourth, it is at least relevant that the statute here runs from accrual and not from some hard and fast point.
And the -- the Government is making this argument that our fraudulent concealment point is really an accrual point.
Well, if it is, then that means that the same conversations one would have about fraudulent concealment one would have about accrual anyway.
So I -- I kept promising that I was going to go back to the baseline points, and the baseline points--
Justice Ruth Bader Ginsburg: Mr. Rosenkranz, in that regard, would you clarify what is the Government's -- what is your position in response to the Government's rather strong answer to your suggestion that equity was foreign to the claims court?
E. Joshua Rosenkranz: --Well, yes, Your Honor First, let me begin by saying that our basic position is that -- that the presumption exists that Irwin was a sea change in the law, that Irwin changes things as to every other statute moving forward.
But we've also ticked off a series of differences between the Federal Tort Claims Act and the Tucker Act, and this difference in forum was one of them.
So from the start, and I mean 1863, the -- the claims court was just a very different body from a district court.
Congress viewed it really as an arm of Congress at first and then it got adjudicatory powers, but it didn't have, in 1863 when Congress passed the statute and in the 1870s, '80s and into the early 20th Century when this Court was interpreting the statute, the court of claims just simply did not have equitable powers.
This Court said it in Bowen.
"The claims court does not have the general equitable powers of a district court. "
Now, the Government cites several cases--
Justice Antonin Scalia: You -- you contradict the Government on that point.
I'm sure the Government said just the opposite.
E. Joshua Rosenkranz: --The Government did say just the opposite and the Government cites several cases.
Now, it is telling--
Justice Ruth Bader Ginsburg: It didn't say the opposite.
It said the claims court didn't have the authority to give equitable remedies.
It didn't have the authority to enjoin.
But from the beginning it had equitable doctrine as part of its--
E. Joshua Rosenkranz: --Agreed, Your Honor.
The Government has taken the opposite position from what I'm saying with respect to whether the court of claims from the start had broad equitable powers putting aside injunctions.
And my point is, the first case that the Government cites is 50 years after the court of claims was created.
By that point, the jurisdictional train had left the station.
Kendall had been decided, Finn had been decided.
It was already set in stone that this was a court whose -- for whom the statute of limitations was jurisdictional.
Now, the cases the Government sites, its best case is Bowles v. United States, that's already 1935, I mean, that's many, many years later.
And not a single one of those cases, including Bowles, ever creates a case-by-case equitable sort of claimant by claimant analysis of the sort that equitable tolling involves.
Justice Antonin Scalia: Well, you say they are later cases but they didn't say the law has changed from what it used to be; did they?
Didn't they purport to say that the court of claims had always had that power?
E. Joshua Rosenkranz: Well, they didn't purport to say it but they did say the court of claims currently has that power, and I grant you that I'm -- that that may sound like splitting hairs, but we're trying to -- we're trying to get behind what this Court was doing back in the 1870s and 1880s.
And I'll just emphasize, several of the cases that the Government cites, are cases in which what the court of claims does looks like the result is equitable, but what this Court held was that equity had nothing to do with why this Court approved what the court of claims did.
But rather, this Court was saying the powers that the court of claims was exercising were actually in the statute.
So Milligan is a particularly striking example.
This Court said that the court of claims action with which the Government chalks up to equity, actually,
"Seems to us to fall within these words. "
--that is, the words of the Tucker Act --
"in their obvious and literal sense. "
But I don't want to dwell too much on the difference between the forums because--
Chief Justice John G. Roberts: Well, if I could just pause there, I mean, obviously I'll go back and reread Bowles.
But in Bowles they said the money should be returned because it offended principles of natural justice and equity.
E. Joshua Rosenkranz: --Yes, Your Honor.
Chief Justice John G. Roberts: It doesn't sound like something in the statute.
E. Joshua Rosenkranz: Yes, Mr. Chief Justice, and what was going on in Bowles was also not claimant-by-claimant decisions, it was sort of a broad class of claimants.
And I agree with you.
That is the one -- that is the closest case to what the Government's position is.
But those other cases are, to the extent that the court of claims is exercising what looks like equity, it's always in favor of the Government.
Which is consistent with the manner in which the court of claims was born.
It was intended to be a parsimonious doler out of government funds.
So I want to turn, though, for a moment to the proposition that this is just a wholesale withdrawal -- excuse me, a wholesale adoption of the Federal Tort Claims Act plunked into a -- excuse me, a wholesale adoption of the Tucker Act plunked into a new framework, a -- a new statute.
It is not.
Certainly not in 1966 for the reasons that I've described, but also not in 1946.
First, I've already mentioned this forum distinction.
Secondly, there are -- there is a distinction and Congress understood there to be a distinction between torts and contract claims -- on the one hand, and contract or takings claims on the other hand.
Contract claims and takings claims, even contracts, Federal contracts, are governed by Federal law.
Torts -- this -- the Congress made the decision that tort claims are going to be governed by State law and it adopted statutes of limitations that mimicked State law statutes of limitations.
That one-year statute of limitations was an effort to try to mimic what States were doing.
And it changed to two years, Congress said, because it wanted to mimic what States were doing a little bit later.
And it's important to understand that the -- the State tort laws were always subject to equitable tolling.
The differences between a two-year statute of limitations and a six-year statute of limitations is -- is very considerable, especially when one brings to mind the sorts of considerations that Justice Breyer mentioned, that tort claimants are often -- are often unrepresented.
Justice Ruth Bader Ginsburg: --Mr. Rosenkranz, may I interrupt you because I thought I heard Ms. Prelogar say that at the time that the FTCA was adopted, there were only four States that applied tolling.
E. Joshua Rosenkranz: I -- I don't -- I don't believe that is true.
Equitable tolling has been a rule that courts -- that courts have applied since the 1800s to all manner of -- of claims.
Torts were no exception.
And one of the reasons that States had such short statutes of limitations was precisely because equitable tolling provided a relief--
Justice Sonia Sotomayor: No.
She's -- I'm not talking about their equitable tolling in tort cases.
She's saying in waivers of sovereign immunity, tort claims against States, which is slightly different.
E. Joshua Rosenkranz: --Oh, yes.
So -- so let me just rephrase what I understand the government to be arguing.
Those weren't equitable tolling provisions in statutes, as I understand the point the government is making, those are exceptions to statutes of limitations.
They look like the Tucker Act exceptions, but they're not case by case.
They are -- if you're overseas, as Mr. Schnapper said earlier -- actually, it doesn't matter whether you're monitoring the docket and you can fully preserve your -- your claims, it's just sort of a flat-out bar.
And those are the ones that -- that I believe the government is speaking about.
Those are statutory.
And as Mr. Schnapper pointed out, statutory exclusions from the statutes of limitations have always coexisted with equitable exclusions.
And I also--
Justice Sonia Sotomayor: Do you think, like Mr. Schnapper, that your way of looking at this would call into question McNeil v. U.S.?
E. Joshua Rosenkranz: --No, Your Honor.
And I don't think it calls into question McNeil v. U.S. at all.
So -- and there are two pieces to the answer.
The first piece is, let's assume that McNeil was a jurisdictional ruling, which means that in order to present your -- in order to file your lawsuit, you have to present your claim first to the agency.
Well, in order to file a lawsuit, in real -- outside of this context, you also have to file a complaint.
The filing of a complaint is jurisdictional, but that doesn't mean that the time limit for filing it is jurisdictional.
So too here, if indeed the filing of an administrative form -- you know, this administrative presentment is jurisdictional, that doesn't mean that the -- that the time limit for filing it is also jurisdictional.
But I said there were two halves.
The second half is I agree with Mr. Schnapper, this Court came to a conclusion in McNeil.
The conclusion is you can't have your lawsuit without exhausting administrative remedies.
That was not stated as a jurisdictional ruling.
It was -- it -- it is analyzed much more like an exhaustion ruling, to my mind, which doesn't necessarily mean jurisdictional.
So I was beginning to tick off some of the differences between the Federal Tort Claims Act and the Tucker Act, and I was talking about the differences in statutes of limitations, the differences in the nature of the forums, the differences in the nature of the law, and I want to come back to that last one.
The FTCA treats the government like a private individual.
It says it three times in the statute and it treats the government, to the Chief Justice's question, as a private individual with respect to liability.
So it's not with respect to all procedures that might come up, but it says with respect to liability.
Well, statutes of limitations dictate liability and the procedures attached to the statutes -- excuse me, the time limits attached to the statutes of limitations also affect liability.
Justice Sonia Sotomayor: I have -- I have a question.
Why is it important to tie this presumption of jurisdiction or not to the 1946 Act?
I mean, why don't you just say that whatever presumptions existed of borrowing from the Tucker Act obviously changed in 1966.
E. Joshua Rosenkranz: That--
Justice Sonia Sotomayor: They changed the language, they changed the process.
I mean, do we need to go back?
Why -- why not just say, whatever the presumptions were with respect to the jurisdictional nature in the Tucker Act in 1946, or even thereafter, got completely thrown out the window in 1966?
E. Joshua Rosenkranz: --That -- that was indeed, Justice Sotomayor, my opening point.
And I've been making this argument--
Justice Sonia Sotomayor: But then you said I agree with Mr. Schnapper that since 1946--
E. Joshua Rosenkranz: --So -- so I was making the argument to those like Justice Scalia, who reject our refreshment theory--
Justice Sonia Sotomayor: --Okay.
E. Joshua Rosenkranz: --and -- and say, well, what about 1946?
And even in 1946, that if you apply the Irwin presumption, which this Court said in Irwin it would, you get the same result.
And that's -- that's the fundamental point on the precedence that I want to make sure to emphasize.
Our argument is not that this is a living statute that blows in the wind with congressional intent.
Our argument is that Irwin made it clear that there is a sea change, that Soriano and all the cases dating back on the Tucker Act adopted a vision of what Congress must have intended that Irwin says is wrong.
That is not what Congress intends just because it waives sovereign immunity.
Chief Justice John G. Roberts: Well, I don't think it can be regarded as such a sea change because the basic principle is you're looking to legislative intent.
And he said, the the late Chief, that the realistic assessment of legislative intent is likely to be found based on the presumption.
Of course, you know, subject to rebuttal.
So that doesn't seem to me to be the whole point is we think this is how best define legislative intent, and that I thought has always been the rule.
E. Joshua Rosenkranz: --Well, that's always been the rule, Your Honor, in the private context and the government is now being put in the private context, but that was not always the rule with respect to the government and certainly not consistently because we have Soriano.
Chief Justice John G. Roberts: But, I mean, that was not a legislative intent.
The view was not that we think the presumption of legislative intent is is no equitable tolling.
E. Joshua Rosenkranz: Oh, Your Honor, I -- I beg to differ.
As I read Kendall and Finn, they didn't -- this Court did not use phrases like “ presumption ”.
But what this Court did was to say Congress didn't say anything about this, but it was legislating against a backdrop of waiving sovereign immunity, and when Congress waives sovereign immunity, we have to read statutes in a particular way; we're going to read them very strictly.
Irwin says, no, that's not how we're going to read statutes, that the better way to read statutes is to assume the opposite, that Congress did not intend statutes of limitations to be jurisdictional.
And sure -- and by the way, John R. Sands says, and I quote, “ It was ” -- and I quote --
"a turn in the course of the law. "
which now, quote,
"places great weight upon the equitable importance of treating the government like other litigants and less weight on the special governmental interest in protecting public funds. "
Words that this Court, perhaps by accident, but -- but almost took directly out of the Federal Tort Claims Act, treating the government like it treats other parties.
So -- so Justice Scalia makes a powerful -- powerful point about a countervailing presumption.
But it is not -- by which I mean it is another presumption, but it is a -- it is an agreement that doesn't play out plainly in this context.
And the reason is, as was covered in quite a bit of detail earlier this morning, the notion of -- of fixating on the words “ forever barred ” or the eight or 12 words around it to the exclusion of the rest of the statute is just wrong.
The -- there was no magic to the words “ forever barred ”, not in 1863, not in 1946.
If you do a Westlaw search of forever barred, you will find scores of garden-variety statutes of limitations that are structured exactly this way and that use the exact same words.
And that's the point Justice Kagan was pointing out, Professor Sick's -- Sisk's brief at page 20 gives all sorts of examples.
Mr. Schnapper gave others.
The Fair Labor Standards Act is one.
The -- the statutes or statute that this Court was interpreting in both Klehr and Rotella is another.
And then layer on top of that the fact that the Federal -- that the Tucker Act no longer even has “ forever barred ” in the language, and still this Court says it bears the same meaning.
And it points out in -- in John R. Sand's that the change in language did not make a fundamental difference.
And as I was saying oh, let me just make one more point on this.
In 1877, this Court, in a case called Sanger, which was also cited in Professor Sisk's brief, says that that very language, forever barred, is, quote, an ordinary statute of limitations.
So let me just pause and see if the Court has other questions that it wants to draw me to.
So if there are no further questions, we respectfully request that the Court affirm the court of appeals.
Thank you, Your Honors.
Chief Justice John G. Roberts: Thank you, counsel.
Ms. Prelogar, you have eight minutes remaining.
REBUTTAL ARGUMENT OF ELIZABETH PRELOGAR ON BEHALF OF PETITIONER
Elizabeth Prelogar: If I could just make three points.
First, with respect to the administrative presentment requirement in particular, I want to be very clear on this.
From the beginning, from 1946 forward, there was an optional administrative presentment procedure, and this appears in our brief at page 9a.
This is the original text of the FTCA time bar, and it uses the very same operative language with respect to that administrative presentment option: Every claim against the United States cognizable shall be forever barred unless.
So this is a procedure that has been in the FTCA from the very beginning.
In 1966, what Congress did is make that administrative presentment requirement mandatory.
But when it did so, it did so against the backdrop of every lower court to consider the issue, holding that this language was jurisdictional, not subject to tolling.
It did so against the backdrop of Congress repeatedly, in the private bills, making clear that this was jurisdictional language and that it had to confer jurisdiction on district courts when plaintiffs were trying to proceed outside the time limits.
Justice Sonia Sotomayor: Are you saying that the administrative process was jurisdictional?
Elizabeth Prelogar: Well, the administrative presentment requirement itself, of course, this Court had held -- which it has held was jurisdictional in the McNeil case.
I'm not aware of -- of lower courts in that time limit--
Justice Sonia Sotomayor: --Did we use the language, “ jurisdictional ”?
Elizabeth Prelogar: --You affirmed for lack of jurisdiction, and I think that McNeil language does show that it's an absolute or strict deadline.
There is no room for any exception to it.
Every lower court has understood McNeil to be jurisdictional, and Congress, in 1988, when it enacted the Westfall Act specifically said in -- in the House report there that the administrative exhaustion requirement was jurisdictional, which is why it created that -- that narrow exception to permit an extra 60 days.
So I think it is clearly settled that the exhaustion requirement at this point is jurisdictional.
But the point that I was trying to make about the 1966 reenactment is there, against that consistent backdrop about what this language means, the language that Congress had used, Congress, to set forth a presentment requirement, used the same language once again and -- and, therefore, intended it to have the same meaning.
Chief Justice John G. Roberts: Well, Mr. Rosenkranz tells us that that language is pretty typical for your ordinary, run-of-the-mill statute of limitations.
It sounds pretty daunting, you know, forever barred, but apparently that's the normal language that's used.
Elizabeth Prelogar: And it's absolutely the case, Mr. Chief Justice, that it is not “ forever barred ” itself that necessarily has magic import here.
It's the Tucker Act analogy, the fact that Congress got this language from the Tucker Act, and that in that context, which was a parallel context, it had interpreted to be jurisdictional which makes the difference here.
Every statute will have to be evaluated in light of not just the text but its context and history.
Justice Stephen G. Breyer: Are exactly the problem because the -- really the better language in Irwin is, again, the Chief Justice,
"A continuing effort on our part to decide each case on an ad hoc basis as we appear to have done in the past would have the disadvantage of continued unpredictability without the corresponding advantage of greater fidelity to the intent of Congress. "
"We think that this. "
rule affords us --
"this case affords us an opportunity to adopt a more general rule, to govern the applicability of equitable tolling in suits against the government. "
Yet everything I've heard, not everything, but many of the things I've heard say that this statute is special because if we go into the history of it, if we decide what the various other rules are that might infer intents where they say nothing, if we look over the -- if we do this, if we do that, we will discover that here, unlike many other statutes that use the words “ forever barred ”, here Congress really intended it.
Now, how do we reconcile that view with the two sentences I just read?
Elizabeth Prelogar: Well, Justice Breyer, I think that it would be very easy if the Irwin presumption were just conclusive, but it's not.
The Court adopted that presumption as a way to implement congressional intent, and the Court made clear that it's rebuttable, which means that the government is -- if the government can come forward with statute-specific evidence that it is rebutted, the Court needs to honor congressional intent in an individual case.
So the Irwin presumption can't excuse the normal statutory interpretation process, looking at the text, context, and history.
A brief point on the court of claims issue.
If I understand Respondent, he would distinguish our cases by saying that they were all rendered after this Court's Tucker Act line of cases in 1906 and 1935.
Notably, that's before Congress enacted the FTCA.
And it shows that Congress, when it was enacting that language, had no reason to think that there was some tribunal-based difference between the court of claims and the district court such that the language would be interpreted in fundamentally different ways based only on the tribunal.
A final point I -- I would like to make, drawing back, to just focus on what I understand to be the basic divide between the parties in this case.
Respondents in both cases seek primarily to rely on a general presumption, the Irwin presumption, which wasn't announced with this particular statute in mind.
The government has come forward with an overwhelming amount of statute-specific evidence related to the text, the context, the history of this statute, and that statute-specific evidence has to control.
The Irwin presumption is rebutted.
If there are no further questions, we respectfully ask that you reverse the decision of the Ninth Circuit.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
ORAL ARGUMENT OF ROMAN MARTINEZ ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We will hear argument first this morning in Case 13-1074, United States v. Wong.
Roman Martinez: Mr. Chief Justice, and may it please the Court:
Three features of the FTCA's text and history make clear that Congress did not want to allow equitable tolling of its time bar.
First, Congress drafted that bar in 1946 using jurisdictional language transplanted from the parallel Tucker Act context.
Justice Ruth Bader Ginsburg: Is the -- is the word “ jurisdiction ” used?
Roman Martinez: --The word “ jurisdiction ” was not used in -- in that language, Your Honor, but the Court had interpreted that language in the Tucker Act context in six cases beginning with the -- the Court's decision in Kendall in 1883.
And that decision -- those line of cases had made very clear not only that the time bar was jurisdictional, but--
Justice Ruth Bader Ginsburg: That's the Court.
Congress did not say jurisdiction.
And I -- I'm sure you are well aware that this Court, for some time now, has been explaining that “ jurisdiction ” is a word of many meanings, too many meanings, and has tried to distinguish jurisdiction, meaning subject matter or personal, from the rules, once a case fits jurisdiction, how it will be processed in the Court.
And it seems to me a time limitation, even a very stringent time limitation, is not jurisdictional.
Roman Martinez: --Your Honor, I think two points on that.
First of all, I think that when Congress acted in 1946 and it transplanted the -- the identical words of the statute that -- of the Tucker Act -- the statute governing Tucker Act claims, Congress understood itself to be incorporating the same settled meaning, and those words had already been given a jurisdictional meaning by this Court.
Justice Antonin Scalia: Jurisdictional in the narrow sense.
Roman Martinez: In -- in the sense that -- that -- that if -- that it went to the Court's ability to hear the case--
Justice Antonin Scalia: Yes, that's what I--
Roman Martinez: --and the jurisdictional consequences were attached to those -- to those words.
In other words, the -- the issue had -- could not be waived by the government, and no equitable tolling was available.
In this Court's more recent cases, I think the ones that, Justice Ginsburg, you were referring to, in the Henderson case, what this Court said was that -- was that the Court will presume that a provision is jurisdictional when a long line of this Court's cases, undisturbed by Congress, has treated a similar provision as jurisdictional.
And in this case, we have a statute that had been interpreted by a long line of this Court's decisions, all in the Tucker Act context, very similar or identical--
Justice Ruth Bader Ginsburg: But not the Tort Claims Act.
The Tucker Act, I think the -- the line that the Court drew, it said if we characterize these as jurisdictional in a prior case, we will stick with that.
But in the future, we're not doing that anymore.
Roman Martinez: --But I think what the Court has said, both in the cases addressing jurisdiction and in the cases -- in the Irwin line of cases addressing the available of -- the availability of equitable tolling is that the Court is not going to look for magic words in the statute.
It's going to look to the text, the context, and the relevant historical treatment, and that the overarching purpose of the inquiry is going to be to find out what Congress understood itself to be doing at the time that it enacted the statute.
Justice Elena Kagan: But, Mr. Martinez, wouldn't that argument suggest that Irwin was really only good as to new statutes?
As to statutes that were passed after Irwin?
Roman Martinez: I don't think so, Your Honor.
I think -- I think what the Court did in Irwin, it didn't conduct a lengthy historical analysis of all statutes that had ever been passed.
But what it did was it -- it based its -- its conclusion and -- and the presumption on a kind of logical inference.
The Court essentially reasoned, as I understood the decision, as follows: The Court said that -- that when -- we think in the mine run of cases when Congress wants to take the big step of waiving sovereign immunity, it's -- it's reasonable to think that Congress also likely wanted to take the small step of allowing equitable tolling.
And that -- and that may well have been true in 1990, when Irwin was announced.
It may have even been true in 1972, when the statute that was addressed in Irwin was announced.
But we know for certain, and I think the parties agree on this, that the rule in 1946, when the FTCA was passed, was something quite different, and the Court addressed that in the Soriano case just a few years later in 1957.
Justice Ruth Bader Ginsburg: What was different about 1972?
They were pre-Irwin.
So why wouldn't 19 -- a 1972 statute, the extension of Title VII to federal employees, why wouldn't that fall under the old regime instead of the fresh look that Irwin took of it in 1990 as applied to a 1972 statute?
Roman Martinez: Well, I think the -- the key thing -- the -- the issue in this case is, obviously, the FT -- is, of course, the FTCA.
And I think there are significant distinctions between the FTCA, which was passed in 1946, and the provision that was passed in 1972 that was addressed in -- in Irwin.
And we have statute-specific evidence, it's very detailed and is much -- much more extensive than the evidence that was before the Court -- or that was available in -- with respect to Title VII.
Justice Elena Kagan: But, you see, I would -- I guess I would have thought that really anything pre-Irwin, the government could stand up and make a very, very similar argument, which is, you know, in this world we actually thought that a statute of limitations with respect to a suit against a government was jurisdictional, did not include equitable tolling, that there were really no decisions the other way, that Congress thought of that as the background rule.
And so what's to prevent this case from essentially becoming everything prior to 1990 is presumed to be jurisdictional contra Irwin?
Roman Martinez: Well, we're not asking for that presumption, and we don't think that the Court needs to apply that presumption.
I think what the Court needs to do is to look at the language of Irwin, which says that there's a presumption.
It's based on its kind of logical inference about the mine run of cases.
But it also says that the presumption is rebuttable.
And it's rebuttable based on statute-specific evidence where the government can come forward and overcome the presumption by showing that, with respect to a particular law, Congress had a different intent in mind.
Justice Sonia Sotomayor: So if there's ambiguity, what breaks the tie?
You've made your argument, but there are some counters.
The two most important are that Congress took this provision out of the jurisdictional section, and put it in -- in a different section, number one; and, number two, it said treat the government like you would treat any other party.
So those two counter.
Roman Martinez: With res--
Justice Sonia Sotomayor: What -- how -- how do we break the tie?
Roman Martinez: --Well, I think if there were in fact a tie, I think the -- Irwin does -- does put essentially the slight thumb on the scale in favor of no equitable tolling.
But I don't think that there's a tie in this case for a number of reasons.
Let me just address -- I think the primary reason is the Tucker Act point which I mentioned.
But let me address the two textual points that you raised, Your Honor.
The first argument about the placement of the provisions, as the Court knows, the provisions were separated in 1948 as part of that recodification.
And in the recodification law itself, in Section 33 of the recodification law, Congress expressly forbade any inference of legislative construction of what the statutes meant based on the chapter of U.S. Code of Title 28 in which it was placed.
And so the argument that my friend makes that the placement of the provisions in different chapters, that's -- that's an argument that -- that Congress expressly took off the table.
With respect to the second textual argument--
Justice Antonin Scalia: --That was in the text of the recodification?
Roman Martinez: --Yes.
That was in -- in Section 33 of the 1948 recodification.
And not only that, Your Honor, but -- but I think this Court--
Justice Antonin Scalia: Does legislative history support that, too?
Roman Martinez: --It does.
The legislative history supports -- supports it.
It's not just the texture, Justice Scalia.
The -- with respect to the second argument, Justice Sotomayor, that you raised, I think it's true that there's language in -- elsewhere in the FTCA in Section 2674 about the idea that -- that the FTCA intended to create liability where a private person -- in circumstances where a private person would be liable under State law.
But what this Court recognized in Richards and what -- what a lot of courts have recognized, including Judge Friendly's opinion for the Second Circuit in the Kosak case is that the time bar provision, 2401, is an exception to that principle and is essentially a circumstance in which Congress specifically indicated that it didn't want the same rule to apply as would apply between private parties in -- under State law.
And so we don't think that those textual arguments get a lot of traction here and they certainly don't overcome the strongest textual argument which is on our side, which is, of course, the express and deliberate incorporation of the Tucker Act language that it applied to Tucker Act suits in the court of claims.
Justice Ruth Bader Ginsburg: Tucker Act doesn't have to the same extent, in the same manner and to the same extent as with respect to a private party.
That's new in the Tort Claims Act.
Roman Martinez: It -- it's true that the Tucker Act doesn't have that language.
I don't think it needed that language because the Tucker Act -- essentially, that language in the Tort Claims Act, I think, is intended to point to the substantive -- the law that's supposed to be applied, as this Court recognized in Richards.
And so it says, you know, look to State law when you're applying the tort law.
The Tucker Act is a little different because there you're applying Federal law.
You're applying Federal constitutional law, Federal statutory law or the Federal common law of contracts in the Tucker Act context.
So it didn't need that language.
But what the Court has recognized in its cases is, again, that that principle of -- sort of the parity principle, you know, treat the government like a private party, that -- that 2401(b) is really an exception to that principle.
Justice Elena Kagan: I take it that your argument would apply not only to 2401(b), but also to 2401(a)?
Roman Martinez: We -- the government's position is that 2401(a) is -- is also jurisdictional, not subject to tolling.
But our argument is really that the Irwin inquiry requires a statute-specific inquiry.
Justice Elena Kagan: But it's the same language.
And if I understood the argument you're -- you're making, it's -- your essential argument is this incorporated the Tucker language, Congress knew what the Tucker language meant, therefore, Congress understood these to be jurisdictional as well.
Roman Martinez: --Your Honor, I don't want to resist your -- your point too much, but I do want to point thought that 2401(a)'s history is slightly different.
The language in 2401(a) actually originates in the Tucker Act itself in 1887.
The language from 2501 actually came from the 1863 statute, and that's the language, the actual -- you know, the 12-word phrase that's repeated in 2401(b) comes from that provision.
So there's some slight differences, but we're not going to fight.
We certainly would agree that the -- that the 2401(a) language is -- is jurisdictional and that's being litigated in the lower courts.
Justice Elena Kagan: I meant, I have to think that this is just all over the U.S. Code, this kind of language.
There's nothing unusual about this language “ shall be barred ”.
This is kind of the classic language, right?
Roman Martinez: I think that the “ shall be barred ” or “ forever barred ”, that language does appear in a couple of places.
But I think what -- what's important for purposes of our argument is not just that two-word phrase, but the broader phrase, because the broader phrase is what shows that when -- when the human being who sat down on behalf of Congress to actually write this statute, it shows, I think, that he was basing it -- he was essentially cut and pasting from the preexisting Tucker Act provision.
And so that language that's relevant is not just “ forever barred ”, but the phrase
"every claim against the United States cognizable shall be forever barred unless. "
And I think that it's very -- it's not just the language itself, although the language is identical, but it's clear that Congress, when it was drafting the FTCA, was -- its goal was to fill a gap that had been left open in the Tucker Act.
The Tucker Act itself said that it would apply to certain claims, quote, “ not sounding in tort ”, unquote.
And the legislative history that -- that we've cited in our briefs discussing the purposes of the FTCA makes clear that Congress was looking at the -- the Tucker Act, they saw that there was this hole for tort claims, they wanted to plug that gap, and they wanted to give tort claimants, in the language of the -- of the relevant committee reports, the same right to a day in court that claimants had under the Tucker Act.
Justice Elena Kagan: It sounds to me like, the way you're going about this inquiry, we're going to have to take a case on every statute of limitations in -- in the U.S. Code.
Because you're saying, well, this is similar enough and maybe this would be a little bit different, it has a few fewer words, and then we have to look at the history, and we have to stare at the drafting concerns of Congress.
And I thought that Irwin was supposed to take us away from all that.
Roman Martinez: I -- I don't think that -- I don't think it's correct that you would have to take a case on every statute of limitations, Your Honor.
I think that -- that in those cases where the government can come forward with strong statute-specific arguments, that the statute was -- was lifted, for example, from the Tucker Act or from other similar statutes that had been repeatedly interpreted as jurisdictional, I don't think there's going to be much question about whether tolling is allowed.
Justice Antonin Scalia: Irwin said this was just a presumption, right?
Roman Martinez: And that's exact--
Justice Antonin Scalia: And it said the presumption could be overcome and it made clear that this is a question of what was the congressional intent.
When you put all those three together, of course, you have to look at each statute separately, don't you?
Roman Martinez: --We -- I couldn't agree more, Justice Scalia.
And I think that's -- that's actually consistent with this Court's practice.
After Irwin, the Court has repeatedly looked at -- at different Federal statutes and it's conducted exactly the kind of statute-specific inquiry into the text, the history, the precedent, trying to figure out what Congress was thinking.
Justice Samuel Alito: Well, if you have looked at the -- the statutes that could be interpreted one way or the other, are there any that you have concluded are not jurisdictional other than those that we have already held are not jurisdictional?
Roman Martinez: Your Honor, I confess that I haven't gone through the -- the code with an effort to try to figure out where ones that are not jurisdictional.
I think the ones that I have looked at are the ones that the Court has addressed, most significantly in the Brokamp case, in Beggerly, in Auburn Regional, in John R. Sand & Gravel, and now in -- in this case.
And I think what -- what those precedents show is that what the Court has done with Irwin is not to treat it as a conclusive presumption, but, rather, to treat it as a rebuttable presumption--
Justice Elena Kagan: Sure.
But there are two kinds of ways that you can rebut something.
One is by saying, here's something very distinctive about this statute that shows that Congress meant for it to be jurisdictional, that shows that Congress didn't mean for equitable tolling to apply.
But that's not the kind of argument you are making here.
You're making an argument that basically says in this pre-Irwin world, Congress understood that when it came to statutes against the government, they would be jurisdictional and equitable tolling would not apply, see the Tucker Act.
And that could be said, I think, for every statute with respect to suits against the government prior to Irwin.
Roman Martinez: --With respect, Justice Kagan, that's -- that's not our argument.
Our argument is specific to the FTCA and there I think -- I don't want to give you more than three, the golden rule of three, but there are five distinctions.
I can just tick them off.
One is the incorporation of the express language of the Tucker Act.
Two is the fact that this Court addressed this -- this particular statute, or at least tort claims, in the Soriano decision.
It also addressed this particular provision 2401(b) in Kontrick.
Justice Ruth Bader Ginsburg: I thought Soriano was -- was a Tucker Act case.
Roman Martinez: It did, Your Honor, but -- but the Court expressly addressed -- it said that -- essentially, that the same rule that would apply in Tucker Act cases would also apply to -- to statutes waiving sovereign immunity for tort actions.
And that was a response to the point that we had made in our brief--
Justice Ruth Bader Ginsburg: But if the sovereign immunity is what drives it, then the presumption would be overcome in every case against the government because government--
Roman Martinez: --I think -- I think at a minimum, it would -- I think what we have in this statute that was not present in Irwin is the fact that this Court had expressly mentioned, you know, tort actions; and then not only did the Court mention it, but then Congress reenacted the statute in 1966, not just against the backdrop of this Court's statement in Soriano, but also against the backdrop of the uniform view of the lower courts, including a number of courts of appeals, that it all said that this statute was jurisdictional, not subject to waiver, not subject to tolling.
And so that's another unique feature of this statute, the 1966 reenactment.
We also have a number of private laws, ten real-life statutes that were passed by Congress that seem to refer explicitly to 2401(b) as having -- as being a jurisdictional statute.
That's very different from Irwin and it's very different from a lot of almost -- I would imagine almost any other statute of limitations in the U.S. Code.
And then finally, we have the fact that Congress for 60 years, from the '20s through the 1980s, repeatedly grappled with the very question that's at issue in this case, which is whether equitable tolling should be permitted under the FTCA.
In the -- in the bills that it -- that it considered before 1946, a number of those bills, 9 of the 31 that had been proposed, had various types of tolling provisions.
Those were left out of the final statute.
Justice Stephen G. Breyer: Is there another -- is there another reason -- I think both briefs are good briefs and you each have good arguments.
And so if it's an open question, why does the government oppose this?
That is to say, compared to contracts, people who are suing on contracts usually have a lawyer and they have had lawyers, they're dealing with the government, not all.
But this is about torts.
And people who are hurt with torts are frequently badly hurt, they could be anyone in the world.
The government could have treated them very badly.
Lots of things can happen.
The lawyer gets deathly ill on the way to the courthouse.
The clerk mixes up the papers.
Somebody steals the lawyer's briefs and runs off to Chicago.
I mean, all kinds of odd things can happen to a victim of a tort caused by the United States.
Now, if in fact you throw them out on this thing, which I would call a technicality, he has to go to the Senate and he has to ask them for a private bill, which is a drain on their time and somewhat random.
So those are the real choices.
Now, why other than, well, we read it and that's what the law is -- I got that part and that is not a bad argument on your part.
But is there anything else?
Is there any sort of functional reason why the government doesn't just say, look, where this person's been hurt and can win his court, fine, we won't throw him out on the basis of this.
If the hurricane happens, et cetera, then let's proceed anyway.
Roman Martinez: --Your Honor, as -- as you suggested, our primary argument here is that -- that we should win because the law is on our side.
Justice Stephen G. Breyer: That there's nothing else?
That's a good reason by the way.
That's a good reason, yes.
Roman Martinez: In addition to the law being on our side--
Justice Stephen G. Breyer: Yes.
Roman Martinez: --let me try to give a little bit of context for why -- why Congress and why the United States Department of Justice and the Executive Branch has consistently opposed equitable tolling in these circumstances.
And this was heavily debated before 1946 and it's been heavily debated since.
And at every turn, what -- what the position of the Executive Branch and of Congress, the conclusion that they've come to, is that this is such -- this was such a revolutionary step for -- for Congress to take in 1946, to create the tort remedy in the first place.
And this was the second great waiver of sovereign immunity.
It in some ways, you know, reconceptualized the -- the relationship between the government to the people, but -- and that was a big step.
But they were very cautious.
They were very careful and they -- they expressly treated the statute of limitations provision as a safeguard to protect the government from claims that could be brought years afterwards.
And so they wanted something that was strict and this was going to -- the purpose of the limitations provision was going to be to preserve evidence, and also to -- there was another consideration, which was the fact that this was a very controversial bill.
It took 20 years for it to get through in the 20th century--
Justice Ruth Bader Ginsburg: --But, Mr. Martinez, what you said, it's as though the choice were statute of limitations or nothing.
To get equitable tolling, it's a pretty tough case.
In order to get equitable tolling, you must have a truly exceptional case, maybe the case that we're now -- that's now before us is such a case.
But it is not easy to get equitable tolling.
You have to be especially deserving.
So isn't that the answer to it?
Ordinarily, the statute of limitations will govern, but if there are equitable reasons, then there can be an exception.
But those reasons have to be very strong.
Roman Martinez: --Your Honor, I think that's true, that's how the equitable tolling doctrine has been conceived and if Congress were rewriting the statute today, it may well decide -- it could well decide that that would be a better approach.
But the approach that Congress took at the time -- and I think this is best reflected in the colloquy that's cited in page -- on page 41 of our brief -- Congress considered the question of whether in hardship cases it would be appropriate to give judges some discretion where there was a good reason for a -- for a claimant to file late.
And that suggestion was raised by Congressman Gwynn and the Department of Justice -- this was 2 years after the Act.
The Department of Justice said look, it would just be impractical and it would create too much of a burden on the government and it would be impractical to have kind of a rule that was not hard and fast.
And so Congress, in 1948, as that colloquy showed, did not think that the FTCA that had been passed two years earlier allowed for equitable tolling, and the consistent view of Congress when it rejected proposals to add tolling nine different times between 1946 and the late '80s was that equitable tolling should not be allowed.
And so in light of that statute-specific evidence, I think it's -- it's eminently reasonable to conclude that -- that, you know, the law is on our side.
Justice Stephen G. Breyer: If you want to -- I think it is quite funny, what I said.
Of course, the question is the law, all right.
I think what I said before is relevant to the law.
But the question here is a slightly more subtle one in my mind.
I agree with you, the legislative history, et cetera, does show they used “ jurisdiction ” nonstop.
Those are the words.
But “ jurisdiction ” at that time did not have the Irwin meaning.
And so later on, there comes a case, which case Irwin now treats this quite differently than it did before.
And isn't the question -- or is the question from the legislative history point of view a pretty hard one to answer: Did Congress or would those who passed the bill looking at the reasons wanted this statute to pick up the later interpretation of jurisdiction or they wanted it to have stayed the same in the face of that later change in how the courts treat the word.
Roman Martinez: I think--
Justice Antonin Scalia: A living Federal Tort Claims Act is what we're talking about here.
Justice Stephen G. Breyer: That's actually right.
Roman Martinez: --Justice Breyer, I think that -- I think that, first of all, what this Court has always said, of course, is that -- that the goal of statutory construction in this context as in any other is to look at the text in light of its context and its historical treatment.
What Irwin says is that the goal is to find what the legislative intent was with respect to this particular statute.
Justice Stephen G. Breyer: Yes.
But you see, the question is -- I mean, normally, it arises in a much grander context.
Normally, it arises in the context of changes of terms of the Constitution and so forth.
This is not that grand context.
But still, in this minor context, why isn't the question the same?
How did Congress -- or would because it's hypothetical -- they didn't know?
Roman Martinez: It's not hypothetical, because I think Congress did actually address this exact question.
31 bills were discussed between 1925 and 1946, were proposed in Congress, involving tort claims, proposed tort claims bills.
9 of those bills--
Justice Stephen G. Breyer: They didn't -- they had the tolling.
They didn't pass it and normally what they didn't pass isn't something that's really great strong evidence in light of the meaning of what they did pass.
Roman Martinez: --That -- that's normally true.
But what this -- what this Court said in the Muniz case is that in the particular context of the FTCA, because there was market reliance by each succeeding Congress on -- on the bills that had been proposed earlier, that the omission of a -- of a provision from the final FTCA that had been there before, we should treat that as a deliberate choice, not an inadvertent omission.
So I think it was a deliberate choice here.
And I think, with respect to the evolution of the statute since then, as of 1966, we know that Congress reexamined the time bar.
At that -- at that point in time, it was legislating against a backdrop where this Court had suggested in Soriano that it was jurisdictional, the lower courts had uniformly treated it as jurisdictional, and not just by putting the label on it, but by attaching jurisdictional consequences.
Congress reenacted the statute without any change in meaning, and then even until the late '80s, it repeatedly considered proposals to add forms of tolling to the statute.
Justice Antonin Scalia: If we were to adopt the position that a statute can change in light of current circumstances, what would that Congress think about it today, would there be any reason to limit that to the Federal Tort Claims Act, that proposition?
Roman Martinez: I think it would be hard to do and, Your Honor--
Justice Antonin Scalia: We're into judge Calebresi's manner of statutory interpretation, right?
Roman Martinez: --I think it would be hard to do.
But most importantly for this case, I think that that approach would put -- would essentially be at odds with Irwin, because Irwin says that what governs here is the legislative intent and that, obviously, I think, has to be ascertained at the time the statute was passed.
If I could reserve the balance of my time for rebuttal.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF ERIC SCHNAPPER ON BEHALF OF THE RESPONDENT
Eric Schnapper: Mr. Chief Justice, and may it please the Court:
I think it would be helpful to start by pointing out that there are two different background rules at issue here.
The first is the rule in Irwin, which concerns the availability of equitable estoppel and, as my brother has pointed out, it is a presumption that statute of limitations are subject to equitable estoppel, and I think he aptly characterized its significant by saying it's a -- it's a thumb on the scale.
Chief Justice John G. Roberts: But -- but not with respect to governmental statutes.
I mean, that was a question of first impression in Irwin.
Eric Schnapper: Yes, the presumption is -- it's the same presumption.
But there's a second background rule here which is somewhat different, and that's the rule Justice Ginsburg pointed to earlier, and that concerns whether a statutory requirement is jurisdictional.
Now, there the line of cases are this Court's decisions from Arbaugh to Sebelius, such as last year, and the requirement there is a clear statement.
And that's, a clear statement requirement, is considerably more demanding.
It's more like a whole hand on the scale.
It's not a search for intent in the same way that Irwin suggests.
This, the statutory requirement in this case, truly does not satisfy the clear statement requirement.
The language of 1346(a) provides that if six requirements are met the courts shall have jurisdiction.
So at this point, the burden is even greater.
The Federal Tort Claims Act is highly specific about things like that.
It -- it -- there is an express carve-out for things deemed not jurisdictional for pension claims.
There is also a provision in Section 2671 defining some of the terms in 1346.
Those would be jurisdictional.
But there is no connection between the statute of limitations and the jurisdictional provisions.
And if I might respectfully disagree with the government about one historical matter, the statute of limitations and the jurisdictional provision have always been separate.
The statute of limitations was in Section 420 of the original Act, and the jurisdictional provision was in Section 410.
And they had their own headings back in 1946, and the -- the term -- the heading “ Jurisdiction ” was only for the jurisdictional provision, not for Section 2401.
So the text of the statute simply doesn't provide the clear statement that is needed, and--
Chief Justice John G. Roberts: What did the re -- what did the recodification do?
Eric Schnapper: --It moved things to -- to different parts of 28 U.S.C., but it -- those sections were separate all along.
The -- and in this regard we agree with the government, the view advanced by the government in its briefs in Zipes and Arbaugh, which is that when a -- a statute of limitations and a jurisdictional provision are in separate provisions of the statute, which they always have been, that that gives rise to a strong presumption that they are not jurisdictional.
Justice Sonia Sotomayor: So did we err in McNeil?
Eric Schnapper: Sorry?
Justice Sonia Sotomayor: Did we err in McNeil?
Eric Schnapper: You did not but -- but McNeil does not hold that the exhaustion requirement is jurisdictional.
We disagree with the government about that.
The district court had held the requirement was jurisdictional.
This Court held only that the requirement hadn't been satisfied.
If the Court had used the word “ jurisdiction ” it wouldn't have been any consequence; it would have been, as the Court's phrase goes, a drive-by jurisdictional ruling.
But this is less than that.
The government asked the Court in McNeil to label that requirement jurisdictional and it didn't.
So McNeil is an unsuccessful solicitation of a drive-by jurisdictional rule.
It simply doesn't provide the support that you suggest.
There would, in any event, have been some statutory argument there, because the jurisdictional -- excuse me, the exhaustion requirement in Section 2675 is in Chapter 171.
And the jurisdictional provision does contain the language “ subject to Chapter 171 ”.
But the statute of limitations is in sub -- is in Chapter 161.
There isn't that same cross-reference.
Justice Ruth Bader Ginsburg: Mr. Schnapper, what do you do with what I take to be the government's main argument?
They said here are these two statutes waiving the government's sovereign immunity.
The Tucker Act, no equitable tolling.
Tort Claims Act comes later, it uses a lot of the same language, it has the same object, so the Tort Claims Act should be interpreted in harmony with the Tucker Act.
Eric Schnapper: We think there are a number of problems with that argument.
It has various iterations and maybe I can separate them out.
One version of that is that the words “ shall be forever barred ” are inherently jurisdictional.
And as we note in our brief, that language is in a number of other statutes.
The particular cadence of it, every act shall be forever barred unless, is also in the Clayton Act, which in Rotella this Court held was not jurisdictional, and it's in the Fair Labor Standards Act, which is -- where the government repeatedly contends that equitable tolling is available.
So I think the -- and indeed--
Justice Antonin Scalia: It isn't just that phrase.
It's other language that is just lifted verbatim from the two prior Acts.
And you add to that the fact that the purpose of this statute was to eliminate the exception in the Tucker Act for torts.
Eric Schnapper: --But--
Justice Antonin Scalia: --That was the obvious purpose of it, so they -- they repeat the language of the Tucker Act and say it applies to torts.
One would think that the same limitations that applied to the Tucker Act continue to apply.
Eric Schnapper: --Well, we -- we think not, Your Honor.
The -- again, the -- the rest of the language of the Tucker Act and the Federal Tort Claims Act are very different.
There are 24 sections of the Federal Tort Claims Act, 35 sections of the Tucker Act.
The rest of them have almost no overlap.
It's just this phrase, which is the same phrase in a number of other statutes.
But to get back to the government's historical point about the meaning -- about the pre-1946 decisions, as we've suggested in our brief, those decisions never turn on the words “ shall be forever barred ”.
A series of decisions dating from the 1883 decision in Kendall took the position -- and that was the view in the 19th century -- that any requirement pertinent to a waiver of sovereign immunity was jurisdictional, no matter what it was.
And if the Court were to look at the critical paragraph in the decision in Kendall which the government relies on, the first four sentences of that paragraph are an exposition of that rule: Any requirement, any bar, is jurisdictional.
Then the fifth sentence says: So what are the bars in the Tucker Act, and then it notes that there is a statute of limitations which has the language that applies here.
But if Congress had been familiar with those details, and we presume that sort of thing, though it's not entirely realistic, they would not have drawn from those decisions the view that the language of the Tucker Act was of any significance, because it wasn't to that line of cases.
Justice Stephen G. Breyer: I take it from what you have both argued so far, that there is nothing direct in terms of a report or a hearing or a statement on the floor that shows that anyone in Congress, staff or member, ever thought about this problem.
Is that right?
Eric Schnapper: That's our -- that's our argument--
Justice Stephen G. Breyer: So what we're doing then is we are, however we do it, creating a number -- not creating but following a number of legal rules, court developed, which seek to determine what the, quote, intent of Congress was on the basis of other things, not necessarily what they said or what they -- that's the situation?
Eric Schnapper: --I -- I think that's right.
And we rely on the rules and on Arbaugh in cases about jurisdictional requirements, and in Irwin about -- about equitable tolling.
If -- as I was -- just one more point about Irwin.
As we noted in our brief, at the oral argument in Irwin counsel for the United States pointed out that that language, “ shall be forever barred ”, was not of any distinctive importance and suggested it was probably language from the 19th century that was just common.
And that's true; most States used that very language at the time.
It was just -- it wasn't of any particular independent significance.
With regard to the question asked by Justice Scalia about the living Federal Tort Claims Act and what we're to do about the fact that the principles of interpretation in Irwin and the Arbaugh line of cases weren't on the table back in 1946: This issue has come up in at least four cases and the Court has, although in one instance over your dissent, taken the position that when those rules are applied they don't have effective dates.
They apply to all statutes.
In Soriano -- excuse me, in -- excuse me, in--
Justice Antonin Scalia: Well, it seems to me that is incompatible with what I thought your position was, that it depends upon congressional intent.
So we can just ignore everything you've argued up to here.
It doesn't depend upon congressional intent because we can give those words meaning that the Congress did not give them at the time.
You have to pick one argument or the other.
Eric Schnapper: --Your Honor, our view--
Justice Antonin Scalia: Are you -- are you going to be bound by -- by what the Congress at the time believed it was enacting or not?
Eric Schnapper: --We agree with Justice Breyer that this -- that this -- it's not a question of -- of any indication of actual intent.
The Court has taken the position that when new rules of this sort are adopted, they are applied to laws that didn't exist that were adopted before that.
In your decision for the Court in Young v. United States is a perfect example of that.
In the -- I'm sorry, that's wrong.
Your decision of the Court in Sandoval is an example of that.
In Sandoval, the issue was somewhat different.
It was whether to imply a private cause of action.
And since the Court's decision in Cort v. Ash, this Court has had a somewhat more fairly demanding standard.
But counsel for the plaintiff in that case, myself, argued that since the statute involved had been adopted under the Ancien Regime back in the days of J.I. Case v. Borak, that rule should apply.
And you, the Court, unanimously rejected that argument.
And it made -- it made the point, which is completely applicable here, the Cort v. -- the statute in Cort v. Ash had also been enacted under the Ancien Regime back before the days of Cort v. Ash, but that was the way the Court was going to apply it.
That's precisely the situation here with regard to Irwin.
Irwin is a statute adopted under the Ancien Regime as you said.
Arbaugh is a statute adopted before Arbaugh.
Those rules are applied to all statutes.
Now, if there's an affirmative demonstration of actual intent, if something was discussed as Justice Breyer says, that might be a different matter.
Justice Samuel Alito: This is -- this is spinning out into degrees of abstraction that I hadn't anticipated.
But it's hard for me to believe that Congress really had any intent whatsoever on -- on these issues.
I don't envision members of Congress sitting around thinking about these things.
But put that aside.
Do you -- is it your argument that we should follow congressional intent or not?
Or is it your argument that Congress's intent was to adopt -- to say this is jurisdictional and we delegate, basically, to the courts the -- the determination of what is jurisdictional?
So if they change their mind about the difference between jurisdiction and non-jurisdiction, then that's what this should mean.
Which -- which is it?
Eric Schnapper: I think the Court's answer -- the cases in this Court give a slightly different answer to that question.
With regard to whether something is jurisdictional, the clear statement rule is a clear statement rule.
It's like any number of rules like that from the Court.
Something -- a particularly clear expression of the views of Congress would do, but it is not quite the same subjective intent for a search for intent that we might otherwise have.
But certainly, the Court--
Justice Samuel Alito: So it's not what Congress intended.
You're saying that if they intended to -- all they thought about was they had one idea about jurisdiction, they couldn't conceive of another one, they wanted it to be jurisdictional in accordance with their idea, but that would change.
If -- if others -- if courts begin to think of jurisdiction differently.
Eric Schnapper: --Well, I think my answer is not limited to this clear statement rule.
The Court has articulated a number of clear statement rules.
I don't understand those rules to just drop from the case and then lead to the usual wide-ranging search for--
Justice Ruth Bader Ginsburg: Mr. Schnapper, I think we're getting off the track that Justice Breyer put us on, and I think you agreed with him, that there's no evidence that Congress ever thought anything about what was going to happen in a case like Ms. Wong.
They -- they enacted a statute, and it had a statute of limitations, a firm statute of limitations, but there's no indication that Congress thought about jurisdiction.
We all -- all that jurisdiction stuff comes from decisions of this Court.
Eric Schnapper: --Yes.
And I think in that circumstance, the -- the Court's choice of controlling background presumptions and clear statement of rules are controlling.
Chief Justice John G. Roberts: Well, but that language -- that language comes from decisions of this Court, exactly.
But interpreting the precise language that was put into this act in the same context is the Tucker Act.
They were addressing a problem under the Tucker Act, they used that language.
And whatever criticism you want to direct to the prior decisions of the Court, they have issued -- they had issued rulings on those when the Congress was looking at the FTCA.
Eric Schnapper: But those rulings, we contend, had nothing to do with the particular language of the Tucker Act.
Justice Antonin Scalia: Well, that may well be, but--
Eric Schnapper: No matter what -- how the statute of limitations had been phrased--
Justice Antonin Scalia: --Look, there are a lot of statutes, perhaps most statutes, that are not explicit.
That do not use the magic language that you insist this statute have.
And when that happens, we don't just sit back and say, well, in that case, it's up to us.
We don't say that.
We have certain rules that -- that determine what the presumptive intent of Congress was.
And I don't care whether each individual member of Congress or, indeed, any single one of them had that in mind.
They ordinarily don't.
But we have rules, one of which that is very strong, is that when you adopt the language from another statute -- especially when it is in the same area, and this is the same area as the Tucker Act, it is eliminating the Tucker Act exemption for torts.
When you have the same language and it has been -- that language has been interpreted by the courts uniformly over a period of years to mean a certain thing, we will presume that that is what Congress had in mind when it used the language.
Now, if you're asking us to abandon that rule and just sit back in -- in any case when the legislative history doesn't say anything and -- and make up what we think should be the best answer, that simply is not the way we've proceeded.
Eric Schnapper: --Nor should it be, Your Honor.
Justice Stephen G. Breyer: Didn't -- I mean, the -- sorry, but I get -- I mean, what about many statutes existed saying -- inferring a certain use of the word about men sitting on juries.
And the statutes that say those things were enacted long before anyone thought a woman would ever sit on a jury.
But when they're interpreted by the courts, by and large, they're interpreted to include both genders.
There are many instances.
So certainly Justice Scalia is right in my opinion that that is a rule that -- the one he enunciates, but neither an absolutely firm rule nor the only rule.
Eric Schnapper: Well, I'm happy to agree with all that.
But -- but I think where we--
Justice Antonin Scalia: You think man means women, right?
Eric Schnapper: --I don't think we have to address all that here.
I'm sure you'll have another opportunity--
Justice Ruth Bader Ginsburg: Mr. Schnapper -- Mr. Schnapper, I think that I heard a disagreement between you and Justice Scalia on how close the words were, and you said, yes, there are some phrases in common, but there are big differences, too, in the wording of the Tort Claims Act.
So you can pick out some words and say, yes, Congress adopted that language, but in other parts it didn't take the Tucker Act as the model used different language.
Eric Schnapper: That's true.
And, in fact, there are some fundamental differences between the statutes and we think they're important here.
One of them is the point that was raised earlier that Section 2674 says that in proceedings under the Federal Tort Claims Act, defendant, the United States, would be liable in the same manner and to the same extent as a private defendant in a private action in State court, equitable tolling would be the -- the rule.
Now, there are a number of specific exceptions to the language of 2674, but none of them apply here.
And we think--
Chief Justice John G. Roberts: Well, but that's a -- a principle that obviously doesn't cut across the board.
In private actions in State court, for example, you do not have to give the administrative agency notice within two years, there are all sorts of things that don't have a particular carveout that don't apply--
Eric Schnapper: --No, no.
That is -- that is one of the carveouts, that you have to give notice.
It's in the--
Chief Justice John G. Roberts: --No, no.
Eric Schnapper: --the Federal Torts Claims Act.
Chief Justice John G. Roberts: No, no.
You're misunderstanding my point.
In other words, just because the law says the United States will be liable to the same extent as a private party, it doesn't mean that all the rules -- I mean in State court -- it doesn't mean that all the rules that apply in -- that you interpret them the same way across the board.
There is no requirement that you give a two-years notice in the typical State court action.
But under your theory, well, there ought to be -- do you understand where I'm headed?
Eric Schnapper: I do.
But -- but our view is that having announced that general principle in 2674, Congress then went on in the Federal Tort Claims Act and spelled out a series of express areas where it designated a different Federal answer.
And one of them is the presentment requirement, that actually went so far as to say the Federal Rules of Civil Procedure are going to apply.
There's a whole series, though.
There are listed in Footnote 28 in United States v. Richards.
Section 2680 has 17 other exceptions--
Chief Justice John G. Roberts: And you think in every other--
Eric Schnapper: --If Congress wanted a different result, they spelled that out.
Chief Justice John G. Roberts: --And you think in every other respect, the procedure under the Federal action is the same as under the State action?
Eric Schnapper: Presumptively--
Chief Justice John G. Roberts: And it goes -- it goes to liability, right?
That's the word that's used?
Eric Schnapper: --Well, it says in -- in like manner.
Chief Justice John G. Roberts: They're not procedures.
I mean, the procedures are different, obviously.
Eric Schnapper: --Yes, but a -- a statute of limitations is a bar to liability.
And it -- this isn't just a question of how many depositions you -- you would get--
Justice Antonin Scalia: You know, I don't find the -- the existence of -- of those exceptions, and there are a lot of exceptions, so persuasive, because unlike the Tucker Act, the Tort Claims Act refers to State law, so you have to make exceptions unless you're going to suck in everything about State law, procedures and everything else.
So, you know, it's sort of apples and oranges.
The fact that those exceptions are there are explicable not because Congress didn't think jurisdiction meant jurisdiction in the narrow sense, but, rather, because having referred us to State law, they had to make some exceptions from State law.
Justice Sonia Sotomayor: Isn't your point, however, that this is a new regime, that it's not the Tucker Act, that it's something created -- they may have borrowed from the Tucker Act some phrases and a couple of things, but they created a new statute.
So to say they were wholesale taking the Tucker Act or even considering that they were duplicating the Tucker Act is not appropriate.
Eric Schnapper: --I -- I think that's right.
As we said, most of the statutes are entirely different.
There's also another fundamental difference, which is the claims recognized by the Tucker Act were sent to the then newly-created Federal court of claims, which only had whatever powers Congress was going to give it as it created them.
Justice Ruth Bader Ginsburg: The government answered -- you're saying the difference is the district court has all kinds of equitable authority, claims court didn't.
But the government answered that argument and said there's a difference between equitable doctrines, which the claims court followed, it's just that the claims court can't give equitable remedies like injunction.
So the government's answer is isn't that divide, that equity is part of the jurisprudence of the claims court?
Eric Schnapper: --I think that argument relates to the argument that's been made by the Plaintiffs in June.
I'm making a different point, which is -- the point that would go, for example, to the presumption of equitable tolling and the standards of that articulated in this Court's decision in Holland v. Florida.
The Federal district courts already existed in 1946.
They had the inherent power to engage in equitable tolling.
There were no inherent powers in the court of claims in -- in 1863.
It didn't exist.
Holland says that if Congress -- that the fact that those powers were already there matters, and that there's going to have to be a strong showing that Congress, in adopting a statute, meant to take away the powers that normally existed.
That problem doesn't exist under the Tucker Act because there -- there were no powers to take away the -- the courts were just being created at that time.
If I could turn for a second from the issue of -- of jurisdiction to the issue of equitable tolling, because the -- the issues there are somewhat different.
That is, the government suggests even if the statute is not jurisdictional, whether there's equitable tolling is a separate question.
The -- the government's argument relies primarily on the fact that a number of other statutes had statutory tolling provisions.
They are labeled exclusions in the case of Section 2416.
And the government argues that if there are -- there's some sort of statutory exclusion, or sometimes it's called tolling in this Court's decisions, that would mean Congress didn't want equitable tolling.
Now, that issue has been litigated before this Court several times.
It was litigated in Young v. United States where the taxpayer made the same argument that since there was a statutory exclusion or tolling provision, there couldn't be equitable tolling.
This Court rejected it there, and the Court's opinion said that the -- the statutory provisions and equitable tolling supplemented one another.
The Court rejected it as well in Holland v. Florida.
Now, there's an historical reason for all that.
Tolling provisions or exclusions in statutes have always coexisted with equitable tolling, going back hundreds of years.
The original English Statute of Limitations Act of 1623 had 5 exclusions in it.
In fact, 4 of the 5 exclusions in the Tucker Act came from that.
And yet despite the fact that English statute of limitations always had exclusions and they're carried over in colonial and -- and American State legislation, there has also been equitable tolling.
The two things coexist and supplement one another.
And often, although not inherently, the statutory provisions operate differently than equitable tolling.
Equitable tolling is an individualized, a somewhat discretionary choice, and it requires a showing of hardship applicable to the individual.
The statutory exclusions do not.
The statutory exclusions are there whether the -- the plaintiff had a compelling problem or not.
So, for example, in the Tucker Act and indeed in the original English statute of limitations, there is a carveout for people who are beyond the seas, and the statute of limitations doesn't begin to run as to them until they come back.
That exists even if they're just across the channel in Calais and have a full-time agent in London to manage their affairs.
There's not a requirement of -- of hardship.
So the government's argument, I think, misapprehends the fact -- the history of all of this and the fact that these two provisions have always coexisted.
And the government's legislative history argument is -- largely fails on the same ground.
What Congress did not adopt in the years prior to the Federal Torts Claim Act were -- were tolling -- statutory tollings.
They -- and I think you could make a fairly good argument that Congress decided not to have statutory tolling rules, but they have always been separate from equitable tolling rules.
The government, in its argument in Younger, made this point really well.
I think it's about--
Justice Anthony Kennedy: Are there any Federal statutes that permit equitable tolling--
Eric Schnapper: --Equitable tolling, yes, yes.
Justice Anthony Kennedy: --and how are they worded?
Do they say -- do they say equitable tolling?
Eric Schnapper: Oh, no.
I don't know that one exists.
But there are in any number of Federal statutes which have statutory tolling where the court has held there's also equitable tolling.
That was Young and Holland.
Justice Anthony Kennedy: But based on the language of the statute, there are carveouts.
And -- and as you actually explained--
Eric Schnapper: The carveouts are statutory.
The equitable tolling was always there, but what the Court said was the carveouts--
Justice Anthony Kennedy: --But have the statutes recognized, A, there are carveouts, and B, there is something like equitable tolling?
Eric Schnapper: --I don't know that.
But -- but what the courts' decisions hold is the existence of a statutory carveout does not preclude--
Justice Anthony Kennedy: I understand.
Eric Schnapper: --traditional exercise of that discretion.
And the -- the legislative proposals that the court -- that the government refers to for a carveout may reflect, I think it fairly does reflect a decision by Congress not to have a statutory carveout, that doesn't mean Congress was intending to bar equitable tolling.
They're -- they've always been different and separate.
And as the Court said in Young, they supplement one another.
If the Court has no further questions.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Martinez, you have four minutes remaining.
REBUTTAL ARGUMENT OF ROMAN MARTINEZ ON BEHALF OF THE PETITIONER
Justice Antonin Scalia: Mr. Martinez, I hate to cut into your time, but it's important to me to understand why you think that if we rule for you, we will not be saying that every statute which allows suit against the Federal government and which uses the words “ shall be forever barred ” will not have to come out this way.
What distinguishes this case from all those others?
Roman Martinez: I think in this case it's not just that phrase, it's the broader phrase that was lifted verbatim from the Tucker Act.
And to my knowledge, there's no other statute that's been cited in -- in their brief, there's no other statute that I'm aware of that's currently in effect that -- that borrows that same language from the Tucker Act.
And I think what's -- what this Court could also do--
Justice Elena Kagan: I'm sorry, which language are you talking about?
Roman Martinez: --I'm talking about the phrase,
"Every claim against the United States cognizable shall be forever barred unless. "
So I think you could limit--
Justice Elena Kagan: I mean, “ shall be forever barred ” seems, to me, to be the most important part of that language.
Roman Martinez: --I think that is the most important part.
But I think that it's the incorporation of the entire phrase that can give the Court confidence that what Congress was doing here was directly lifting something from the Tucker Act.
Justice Sonia Sotomayor: 2401 just says,
"A tort claim against the United States. "
I don't know how else you would say it, where else you would borrow it from if what you're interested in is making sure that the U.S. is responsible, that you're effectuating a waiver of sovereign immunity.
Roman Martinez: Justice Sotomayor, I think the language that I'm referring to is the one that was in the original 1946 FTCA, which tracked verbatim the language from the Tucker Act.
And so I think -- I think that this Court can issue a narrow opinion that's focused on the FTCA that emphasizes that that was -- that language was -- was lifted verbatim, it was essentially cut and pasted from the Tucker Act, and it was intended to -- to bring along with it--
Justice Sonia Sotomayor: Has the Tucker Act been amended?
To take that language out?
Roman Martinez: --The Tucker Act provision has been amended slightly.
It appears in 2501.
And what this Court said in John R. Sand & Gravel was that the minor changes that had been made to -- to the Tucker Act language were essentially insignificant.--
Justice Elena Kagan: Is there anything else you would say to Justice Scalia is it's just "shall be forever barred" plus a few more words?
Roman Martinez: Justice Kagan, I think it's the same points that I made in response to your questions earlier.
I think there are a bunch of other features of this particular statute of limitation, the fact that the Court had addressed it in Soriano, the fact that the Court addressed it, although perhaps in dicta, in Kontrick, the private laws that had expressly addreseed this particular statute, the fact that it was reenacted in 1966 against a consistent backdrop of incorporation.
Justice Ruth Bader Ginsburg: As far as Kontrick is concerned, that line of cases I thought came out with Bowles, Bowles v. Russell, and John R. Sand that we're not going to undeclare something jurisdictional that we, the Court, but when it's -- we're dealing with a statute that this Court has never said that about, then we don't carry over that ancient regime.
Roman Martinez: Justice Ginsburg, I think in -- in footnote 8 of the Kontrick opinion, this Court referred to 2401(b) and it said that it confined review of district courts and was of a similar order to U.S.C. 2107, which was the provision that was later at issue in Bowles.
And in Bowles this Court referred to footnote 8 of Kontrick and used that footnote which referred to 2107 and to the time bar of the FTCA and it used that footnote as a reason to conclude that 2107 was jurisdictional.
And we think the same concolusion follows here.
I think the key point about this--
Justice Ruth Bader Ginsburg: I better take another look at Kontrick.
Roman Martinez: And Bowles, with respect, Justice Ginsburg.
Justice Ruth Bader Ginsburg: In Bowles, I was in dissent.
Roman Martinez: I -- I seem to remember that, Justice Ginsburg, but I think the Court's opinion in Bowles expressly addressed the meaning of that Kontrick footnote.
I think stepping back a little bit from the weeds here that we've been discussing, my colleague and I have been getting into the details of the legislative history, I think the big picture here is that Congress, from the 1920s through the 1980s, repeatedly engaged with the issue of equitable tolling and at every turn it signaled its intent not to allow equitable tolling.
We ask for reversal.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.