Equitable Tolling of the Statute of Limitations in the Federal Tort Claims Act: Brief of Professor Gregory C. Sisk as Amicus Curiae in Support of Respondents, United States v. Wong, No. 13-1074, and United States v. June, No. 13-1075, United States Supreme Court

Abstract

Although the Federal Tort Claims Act is a clear and unequivocal waiver of federal sovereign immunity, the United States nonetheless insists that the time limitations in the statute be strictly construed in favor of the government. The Government asks for the privileged benefit of an absolute jurisdictional rule that, contrary to ordinary expectations in civil litigation, need not be pleaded as an affirmative defense, cannot be waived, and is not subject to equitable tolling.Since the dawn of the century, however, the Supreme Court’s increasingly common encounters with statutory waivers of federal sovereign immunity have also become more conventional in interpretive attitude. An early jaundiced judicial attitude toward statutes allowing suits against the sovereign has resolved into a greater respect for the legislative pledge of relief to those harmed by their government. The Supreme Court has recognized a dichotomy between the threshold question of whether sovereign immunity has been waived (requiring a “clear statement” by Congress) and the inquiry into how the statutory waiver should be interpreted and applied (with the canon of strict construction fading away and ordinary tools of statutory interpretation prevailing).The plea of the United States for rigid application of time limitations to resist claims of tortious harm undermines the congressional purpose behind a remedial statute expressly making the Federal Government liable in the same way as a private person. The Government’s request contradicts the Court’s line of decisions denying special solicitude to the Government in applying procedural rules such as limitations periods. This amicus curiae brief seeks to place these controversies in the larger context of the Supreme Court’s coalescing jurisprudence of statutory waivers of federal sovereign immunity.