Statutory Stare Decisis in John R. Sand & Gravel Co. v. United States

This past Tuesday, November 6, the Supreme Court heard head-spinningly complicated but (perhaps for this reason) thoroughly entertaining oral arguments in a case called John R. Sand & Gravel Co. v. United States. The case evolved as follows: John R. Sand & Gravel Co. owns a long-term lease on 158 acres of land in Lapeer County, Michigan. A pre-existing landfill located on this land is contaminated with illegally-accepted industrial waste. In 1992-1993, the United States Environmental Protection Agency (EPA) erected a chain link fence around roughly 60% of John R. Sand’s leasehold land and began excavating the contaminated waste from the site. Since 1992, EPA has at various times removed and relocated the fence to different parts of John R. Sand’s leased land and at one point obtained an injunction preventing John R. Sand from interfering with its remedial efforts. In 2002, John R. Sand filed a complaint seeking just compensation for the EPA’s “permanent physical taking” of portions of its leasehold land.

John R. Sand’s lawsuit is authorized under the Tucker Act, 28 U.S.C. §1491(a), which waives the United States’ sovereign immunity for claims “founded upon the Constitution” and confers jurisdiction on the Court of Federal Claims (CFC) to hear such claims. The government initially moved for judgment on the pleadings on the grounds that John R. Sand’s suit was time-barred under 28 U.S.C. §2501. Section 2501 provides that:

Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.

The CFC denied the government’s motion, finding that John R. Sand’s takings claims based on EPA’s construction of the chain link fence did not accrue until 1998. In subsequent pre-trial briefing, the government took the position that the fence-based claims accrued in 1998. Following a bench trial, the CFC ruled against John R. Sand on the merits. On appeal, the government did not argue that John R. Sand’s complaint was time-barred. An amicus brief, however, raised the timeliness issue, and the Court of Appeals sua sponte addressed it on review, concluding that John R. Sand’s fence-based takings claims had accrued in 1994 rather than 1998 and that his 2002 complaint thus was time-barred under 28 U.S.C. §2501.

Here’s where the case gets complicated(!) Ordinarily, an argument that a plaintiff’s claim is time-barred under the applicable statute of limitations is an affirmative defense, which must be raised and preserved by the defendant in order to avoid being waived. Which would mean that where, as here, the defendant conceded that the accrual date was 1998 and dropped the statute of limitations argument altogether on appeal, the Court of Appeals could not resurrect that argument as a basis for its ruling. BUT, the United States is no ordinary defendant. It is a defendant who ordinarily cannot be sued, except when it consents to do so by statute. If that statutory consent comes attached to a time limitation for filing claims against the United States, then the failure to comply with the limitations period no longer is an ordinary affirmative defense, but a condition of the sovereign immunity waiver. So the question becomes: Is the six-year limitations period in 28 U.S.C. §2501 meant to be part and parcel of the United States’ consent to be sued under 28 U.S.C. §1491(a), or is it merely an ordinary limitations period subject to waiver? Or, put more technically, is the statute of limitations set forth in 28 U.S.C. §2501 jurisdictional (meaning that it establishes a condition that the plaintiff must meet in order to have a right to sue the government in the first place) or is it merely procedural (meaning that it does not speak to plaintiffs’ right to sue, but only to whether or not a remedy can be granted for a violation of those rights)?

John R. Sand has a pretty good plain meaning argument that because 28 U.S.C. §2501 bars petitions filed more than six years after the accrual of a claim “of which the United States Court of Federal Claims has jurisdiction,” it treats the conditions for establishing subject matter jurisdiction as distinct from the requirement that claims be brought before the CFC within six years from when they accrue. In other words, because the text of the statute makes clear that the six-year time constraint applies to claims over which the CFC “has jurisdiction,” the time constraint itself cannot be a pre-condition necessary in order for jurisdiction to attach.

Complication #1: The Tucker Act’s waiver of sovereign immunity and the six-year limitations period on cases filed before the CFC have been around for a long time, in various statutory forms. And the Supreme Court has on several previous occasions ruled that the limitations period in 28 U.S.C. §2501 and its predecessor statutes is jurisdictional in nature. See, e.g., Soriano v. United States, Kendall v. United States, Finn v. United States . A long-standing rule of statutory interpretation holds that where the Court has given a particular construction to words or phrases in a statute, that judicial construction becomes part and parcel of the statute itself, until and unless Congress changes the statute through amendment or repeal. This “statutory stare decisis principle has been taken to extremes, as in Flood v. Kuhn , when the Court refused to extend the reach of the Sherman Antitrust Act to organized baseball — despite the fact that every other major league sport was subject to antitrust laws — because of two earlier judicial decisions construing baseball to be exempt from antitrust regulations. (See Federal Baseball Club v. National League; Toolson v. New York Yankees). In the case of the Tucker Act, although Congress has recodified and refined the relevant statutory sections since Kendall, Soriano, and Finn were decided, it has not taken the opportunity substantially to change the language or import of these statutory provisions. (For statutory interpretation buffs: This argument, hammered home repeatedly in the government’s brief, smacks a bit of the “Dog That Did Not Bark” canon — itself a reference to a famous inference drawn by Sherlock Holmes in Sir Arthur Conan Doyle’s The Adventure of Silver Blaze ).

Complication #2: In a 1990 case called Irwin v. Dep’t of Veterans Affairs , the Supreme Court ruled that statutes of limitations may be equitably tolled even when the United States is the defendant. This ruling is inconsistent with the Court’s prior line of cases holding that certain statutes of limitations, including 28 U.S.C. §2501, are jurisdictional — because courts do not have the authority to create equitable exceptions (like tolling) to jurisdictional requirements. See Bowles v. Russell . Indeed, Justice White, dissenting in Irwin, asserted that the Court’s opinion effectively overruled Soriano .

Thus, much of the Justices’ questioning at oral argument centered on the extent to which Irwin overruled, or at least limited, the Court’s prior decisions holding that 28 U.S.C. §2501 is jurisdictional in nature. John R. Sand argued that Irwin squarely overruled Soriano. (To borrow from Karl Llewellyn, I’ll call this the first Thrust). The Chief Justice pointed out that Irwin involved Title 7, and not §2501, at issue in this case. (Parry). John R. Sand contended that Irwin held that statutes of limitations generally are subject to equitable tolling, and that if they are equitably tollable, they cannot be jurisdictional. (Thrust). Justice Scalia rejoined that that was John R. Sand’s take on the holding of Irwin, and that Irwin did not say that a statute of limitations could not both be subject to equitable tolling and be jurisdictional. (Parry). Justice Ginsburg stepped in and pointed out that the Court’s opinion in Bowles did say that if a statute is subject to equitable tolling, then it is not jurisdictional. (Thrust). Chief Justice Roberts noted that it was “pretty risky business” to rely on a dissenting opinion in Irwin to determine that that case had overruled Soriano. (Parry). But Justice Stevens later circled back to point out that the majority opinion in Irwin did not take issue with the Irwin dissent’s characterization that the Court was overruling Soriano. (Thrust). The list of jabs and counterjabs goes on, but you get the idea.

In the end, this is one statutory interpretation case whose ultimate resolution is unlikely to focus on the plain meaning v. ambiguity of the statute, even and especially for Justice Scalia. (In fact, it is Justices Stevens and Kennedy who seem most persuaded by John R. Sand’s argument that the text of the statute makes the limitations period look non-jurisdictional). Instead, the Court’s ruling and opinion(s) are likely to grapple significantly with the patchwork of prior cases that have addressed this statutory section. Interestingly, Justice Scalia foreshadowed one possible method by which the Court could reconcile the conflicting caselaw: Irwin could be read to hold only that statutes of limitations considered to be jurisdictional nevertheless can be equitably tolled (so that prior caselaw on jurisdictional statutes of limitations would be overruled only insofar as equitable tolling is concerned). But this is an approach that seems unlikely, based on oral argument, to win the votes of the Chief Justice or of Justices Ginsburg, Breyer, or Stevens. So, my prediction is that if it shows up in an opinion, it will be in a concurring opinion by Justice Scalia. Look also for some kind of separate opinion from Justice Ginsburg highlighting that under Rule 8(c) of the Rules of the Court of Federal Claims, statutes of limitations are listed as an affirmative defense to be pled in the responsive pleadings.

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1 Response

  1. Scott Dodson says:

    In addition, there was a fascinating exchange in the oral argument in which Justice Ginsburg confesses that every single Justice (and, apparently, the parties) erroneously assumed an important fact in Bowles v. Russell that turned out to be false (the erroneous assumption there was that the statute, 28 USC 2107, predated FRAP 4).

    Part of the problem with both Bowles that is again confronting the Court in John R. Sand is that the Court has never really developed a principled approach to resolving jurisdictional characterization questions. The answer, in my view, is not as simple as either text (as John R. Sand argues) or precedent (as the U.S. argues). Both of those should be factors, along with the function and purpose of the rule and its effects. I have attempted to develop such a framework (at least in the removal context) in an article forthcoming this January in Northwestern University Law Review, though I have no illusion that the Court will even read my piece. For those who are interested, it is here: