“Barred Forever”: Determining Whether FTCA Time Limitations Permit Equitable Tolling

United States v. Wong, 135 S. Ct. 1625 (2015).

Anna Whitney Akers

Junior Editor, Cumberland Law Review

In United States v. Wong,[i] the Supreme Court of the United States granted certiorari to resolve the disparity between court decisions concerning whether the language “forever barred,” contained in the Federal Tort Claims Act (FTCA), presented jurisdictional limitations for courts.[ii] The FTCA provides that a tort claim against the United States “shall be forever barred” unless the claimant presents the claim to the appropriate federal agency for review “within two years after [the] claim accrues.”[iii] If the agency denies the claim, the FTCA mandates the claimant file suit in federal court “within six months” of the agency’s denial.[iv] Because claimants are sometimes unable to meet the deadlines enumerated in the statute, they often request equitable tolling for the limitations period.[v] At first glance, deciding whether to grant equitable tolling seemed simple for courts: because the statute states “forever barred,” the claims will be barred forever. However, in Wong, the Court departed from such a literal interpretation and declared equitable tolling is available in suits against the government.[vi]

Wong arose from two cases in which claimants were denied equitable tolling after missing one of the filing deadlines enumerated in the FTCA.[vii] In the first case, claimant Wong brought false imprisonment claims against the Immigration and Naturalization Service (INS).[viii] After presenting her claim to the INS within two years, the INS denied Wong’s claim in December of 2001.[ix] During the six-month FTCA appeal period, Wong moved to amend her complaint to include additional tort claims.[x] However, when the District Court failed to enter a judgment adopting Wong’s proposal until three weeks after the statutory time limit passed, the government moved to dismiss the tort claims as untimely under the FTCA.[xi] The District Court rejected the government’s motion to dismiss and authorized equitable tolling, bringing Wong’s FTCA claim within the statutory deadline.[xii] When the government moved for reconsideration of the ruling, however, the District Court dismissed Wong’s claim, asserting the time bar was jurisdictional; therefore, the claim was not subject to equitable tolling.[xiii] The Ninth Circuit reversed again, holding the time limit provision forever barring claims as non–jurisdictional, and thereby finding equitable tolling permissible under the FTCA.[xiv]

The second case from which Wong arose concerned a deadly highway accident[xv] in which the claimant’s car crashed through a cable median barrier and into oncoming traffic.[xvi] When the claimant discovered the government concealed its failure to require crash testing on the barrier five years into litigation, the claimant brought additional tort claims against the Federal Highway Administration (FHWA).[xvii] The FHWA denied the claim as untimely based on the two-year FTCA time limit provision.[xviii] The federal district court affirmed the denial, holding the two year time bar was jurisdictional, and thus not subject to equitable tolling.[xix] In light of its recent ruling in Wong, however, the Ninth Circuit reversed and held that the FTCA’s time bar was not jurisdictional and therefore subject to tolling. The Supreme Court granted certiorari in both cases to address inconsistencies between the circuits regarding whether courts can equitably toll the FTCA’s time limits.[xx]

To resolve jurisdictional issues, the Supreme Court evaluated whether Congress intended the FTCA’s time bar to be jurisdictional.[xxi] Whether a time bar is jurisdictional affects the power of a court to hear its appeal.[xxii] If time limits are jurisdictional, and a claimant exceeds the statutory time limitations, the court must dismiss the action for lack of jurisdiction.[xxiii] For example, if the Court found the FTCA’s time bars to be jurisdictional, equitable tolling would not be permitted because the court would lack all power to hear the case. Thus, only nonjurisdictional statutory limitation provisions are subject to equitable tolling.[xxiv]

In Wong, the Court concluded that Congress did not intend to make the FTCA time bars jurisdictional because the statute lacked clear jurisdictional language.[xxv] The Court explained that the language of the FTCA pertains only to timeliness, rather than to a court’s power to hear the claim.[xxvi] The Court noted that the language “forever barred” is merely “run-of-the-mill” statute of limitations rhetoric establishing a claimant’s filing obligations.[xxvii] Therefore, because the statute lacked clear Congressional intent for the statutory time limits to be jurisdictional, the Court held that the FTCA time bars should be presumed to be nonjurisdictional.[xxviii] Because nonjurisdictional time bars do not restrict the court’s authority to hear the claim, the Court held that these time limitations can be equitably tolled.[xxix] However, whether these time bars in suits against the federal government are always subject to equitable tolling is a question that has plagued the Court throughout the years.[xxx]

The Supreme Court first addressed whether time limits declared by a statute can jurisdictionally bar a claim in Kendall v. U.S.[xxxi] In Kendall, the Court found Congress intended to preclude equitable tolling in suits against the government by including the language “forever barred” in the statute.[xxxii] When the claimant in Kendall was unable to file his claim within the six-year statute of limitations period, the Court held that the claimant could not toll the statute of limitations, and should instead “apply to the legislative department of the government.”[xxxiii] Thus, no equitable remedy existed for claims exceeding the statute of limitations period.[xxxiv] Additionally, the court found only claims specially enumerated within the statute are exempt from the six-year statute of limitations period on which civilians are allowed to bring claims against the United States government.[xxxv] Otherwise, claims brought after the six-year limitation period would be “forever barred” from the Court’s jurisdiction.[xxxvi] Hence, in Kendall, the Court presumed that the language “forever barred” served as an absolute jurisdictional bar: if the claim does not fall within the statute of limitations, the Court does not have jurisdiction to hear it.[xxxvii] Cases since then, however, illustrate a digression from the Court’s holding in Kendall, to adopting a rebuttable presumption that time bars may be equitably tolled.[xxxviii]

Irwin v. Department of Veterans Affairs[xxxix] provided a new framework for deciding equitable tolling in suits against the government.[xl] In Irwin, a discharged government employee brought an employment discrimination action against the Veterans’ Administration (“VA”) for wrongful termination on the basis of race and disability.[xli] When the VA dismissed the complaint, it sent a letter to the petitioner’s attorney.[xlii] The petitioner’s attorney, however, was out of the country, and did not receive the letter within the thirty-day statutory limit for appeal.[xliii] When the attorney filed the action forty-four days later, the United States District Court for the Western District of Texas dismissed the case for lack of jurisdiction on the grounds that the complaint was not filed within the time specified.[xliv] The Fifth Circuit affirmed the dismissal, and on appeal to the United States Supreme Court, the Court found because failure for the attorney to receive notice was “at best a garden variety claim of excusable neglect,” equitable tolling principles did not apply.[xlv]

However, the analysis of equitable tolling provisions in Irwin remains vital to the progression of the interpretation of “forever barred” language found in statutory time limitation provisions.[xlvi] Prior to Irwin, precedent held time bars may be equitably tolled in suits between private parties, but the Court had not yet extended equitable tolling to suits against the federal government.[xlvii] To resolve inconsistencies between courts that approached these cases on an ad hoc basis, the Irwin Court adopted a “general rule” that extended the ability to equitably toll time limitations between private parties, to suits brought against the United States Government, even when there is a statute waiving sovereign immunity.[xlviii] The Court explains this “general rule” contains a “rebuttable presumption” that limitation periods for suits against the government are nonjurisdictional, and thus can be equitably tolled.[xlix] Furthermore, to assert limitation periods are jurisdictional, the Court held Congress must explicitly state in the statute that a procedural bar exists with jurisdictional consequences if the time limitations are not met.[l] Therefore, to rebut a presumption that a statutory time limitation is nonjurisdictional, clear Congressional intent must be present within the statute to prohibit equitable tolling.[li] Thus, while Irwin agrees with the decision in Kendall that Congressional intent must be present within the statutory provision to find the limitations are jurisdictional, the Court expands the power to equitably toll claims to suits against the government, as well.[lii]

The Supreme Court strayed from its decision in Irwin, however, when deciding that time limitations are jurisdictional in John R. Sand & Gravel Co. v. U.S.[liii] In John R. Sand, the Court dismissed a claim brought by a mining lessee seeking compensation from the United States for an unauthorized taking under the Fifth Amendment.[liv] The government asserted that petitioner’s claims were untimely in light of 28 U.S.C. § 2501,[lv] which states that “[e]very 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.”[lvi] Though the government later conceded that the action was timely, the government won the case on the merits.[lvii] However, when the United States Court of Federal Claims held that the action of the United States did not amount to a taking under the Fifth Amendment, the lessee appealed to the court of appeals, where the judgment was vacated and remanded.[lviii] When the lessee appealed to the Supreme Court, certiorari was granted and the Supreme Court specifically noted that special statute of limitations governing suits against the United States set forth a more absolute jurisdictional limitations period, regardless of any government waiver.[lix] Though the lessee argued the Irwin court created new precedent presuming statutory limitation periods are nonjurisdictional, the Court declined to accept this presumption.[lx] Additionally, the Court declined to adopt Irwin as new precedent, and admonished the “general rule” asserting a rebuttable presumption of equitable tolling in suits against the government.[lxi] Thus, the decision in John R. Sand suggested a movement for the Court to hold all statutory time limitations as jurisdictional.

While the decisions in Irwin and John R. Sand seem contradictory, John R. Sand actually aligns with the logic behind the Court’s decision in Irwin. Though John R. Sand contends the language “rebuttable” defeats any presumption permitting equitable tolling, both decisions essentially espouse the same logic to reach different conclusions.[lxii] The Irwin court did not assert equitable tolling is always permissible in suits against the government.[lxiii] Rather, Irwin emphasizes the importance of adhering to Congressional intent to determine whether statutory limitation periods are jurisdictional or nonjurisdictional; Irwin specifically noted a court’s ability to rebut a nonjurisdictional finding by showing jurisdictional intent.[lxiv] Therefore, while it appears Irwin and John R. Sand conflict, both decisions ultimately assert the truth in whether “forever barred” language presents jurisdictional determinations for tolling provisions arises from explicit Congressional intent.[lxv]

While Wong distinguishes itself from Kendall,[lxvi] the Court ultimately does little to address the overriding concern of whether statutory limitations can be equitably tolled in all suits against the government. While the Court analyzes whether language under the FTCA permits equitable tolling, the Court fails to offer a firm decision addressing tolling concerns in future cases against the federal government. Additionally, recent proposed amendments to the Federal Rules of Appellate Procedure suggest Congressional intent that time limitations are an absolute bar to jurisdiction.[lxvii] Recognizing the conflict between courts analyzing 28 U.S.C. § 2107,[lxviii] the proposed amendments to tolling motions under Rule 4(a)(4) will adopt the view that motions filed outside a non-extendable deadline under Civil Rules 50, 52, or 59 cannot be equitably tolled and are not “timely.”[lxix] These proposed amendments cite to Bowles as authority for prohibiting equitable tolling in post judgment motions.[lxx] If adopted, the amendments will demonstrate further support for interpreting the statutory language “forever barred” as an absolute jurisdictional bar.[lxxi] The proposed amendments would thus conflict with the holding in Wong, and would present further confusion between the courts in deciding whether to preclude equitable tolling in suits against the government.

Because a definite position has not been taken on whether all tolling statutes serve as jurisdictional bars, the Court will likely continue to address cases concerning equitable tolling on an ad hoc basis. Whether Congressional intent to hold time limitations as nonjurisdictional manifests a decision to permit equitable tolling in future statutory time limitation provisions, will likely spark debate amongst courts in the future. The United States Supreme Court will likely see cases urging the Court to make a definitive ruling on whether time limitations may be equitably tolled in all suits against the government, or whether there actually is some truth in these claims being barred “forever.”


[i]135 S. Ct. 1625 (2015).

[ii] Id. at 1630; see also Bowles v. Russell, 551 U.S. 205, 211–13 (2007) (explaining that while time limits that are jurisdictional strip the court of all authority to hear the claim, and thus prohibit equitable tolling of claims, time limits that are not jurisdictional will permit tolling of time limitations for equitable considerations).

[iii] 28 U.S.C. § 2401(b) (2012).

[iv] Wong, 135 S. Ct. at 1629.

[v] See id. at 1629; Bowles, 551 U.S. at 207; Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 91 (1990) (hearing issues regarding claimants’ requests to equitably toll statutory time limitations in suits against the government).

[vi] Wong, 135 S. Ct. at 1633 (“The time limits in the FTCA are just time limits, nothing more. Even though they govern litigation against the Government, a court can toll them on equitable grounds.”).

[vii] Id. at 1629.

[viii] Id.

[ix] Id.

[x] Id.

[xi] Id.

[xii] Wong, 135 S. Ct. at 1629–30.

[xiii] Id. at 1630.

[xiv] Id.

[xv] Id. (the claimant filed the wrongful death action on behalf of her son, alleging the State of Arizona and its contractor were negligent in building the median barrier through which her car crashed).

[xvi] Id.

[xvii] Id.

[xviii] Wong, 135 S. Ct. at 1630.

[xix] Id.

[xx] Id.

[xxi] See id. at 1630–33 (asserting one way to rebut equitable tolling of statutory time limitations is to show that Congress intended for the time bar to be jurisdictional); see also Irwin , 498 U.S. at 94.

[xxii] See Bowles, 551 U.S. at 206–207.

[xxiii] Id. at 210; see also Atkins v. Med. Dep’t of Augusta Cnty. Jail, No. 06-7792, 2007 WL 1048810, at *1 (4th Cir. Apr. 4, 2007); see generally 15A Charles alan Wright et al., Federal Practice and Procedure Jurisdiction and Related Matters § 3901 (2d ed. 2015) (failure to file a timely notice of appeal defeats the jurisdiction of a court of appeals).

[xxiv] See Wong, 135 S. Ct. at 1632.

[xxv] Id. (noting that the statute did not indicate Section 2401(b) is the type of statute of limitations that can deprive a court of jurisdiction).

[xxvi] Id.

[xxvii] Id. at 1632–33; see also Holland v. Florida, 560 U.S. 631, 647 (2010).

[xxviii] Wong, 135 S. Ct. at 1632, 1638.

[xxix] Id. at 1634, 1638. The court has construed the “shall be forever barred” language to be subject to tolling, and has held “nothing in that provisions . . . ‘restrict[s] the power of the federal courts’ to extend a limitations period when circumstances warrant.” This language has more to do with rhetoric at the time than a jurisdictional analysis.

[xxx] Compare In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 190–91 (5th Cir. 2011) (holding equitable tolling was not available in suits against the government), with Arteaga v. United States, 711 F.3d 828, 833 (7th Cir. 2013) (holding equitable tolling was available in suits against the government). Compare Kendall v. United States, 107 U.S. 123, 126 (1883) (holding statutory time limitations are jurisdictional), with Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96(1990) (holding statutory time limitations are nonjurisdictional unless a clear Congressional intent exists for the limitations to be jurisdictional).

[xxxi] See Kendall, 107 U.S. at 125.

[xxxii] Id.

[xxxiii] Id. at 125–26.

[xxxiv] Id.

[xxxv] Id. at 125.

[xxxvi] Id. at 124.

[xxxvii] Kendall, 107 U.S. at 124.

[xxxviii] Compare id., with Irwin v. Dep’t. of Veterans Affairs, 498 U.S. 89, 95­–96 (1990), Bowles v. Russell, 551 U.S. 205, 218–19 (2007), and John R. Sand & Gravel Co. v. U.S., 552 U.S. 130, 137 (2008).

[xxxix] 498 U.S. 89 (1990).

[xl] Id. at 95.

[xli] Id. at 91.

[xlii] Id.

[xliii] Id.

[xliv] Id.

[xlv] Irwin, 498 U.S. at 91, 96.

[xlvi] See Wong, 135 S. Ct. 1625.

[xlvii] See id. at 1631.

[xlviii] Irwin, 498 U.S. at 95–96 (holding the same rebuttable presumption of equitable tolling in suits against private parties should also apply to suits brought against the United States, even under a statute waiving sovereign immunity, unless Congress clearly intended otherwise as evidenced through statutory language).

[xlix] Id.

[l] Id. at 96; see also Wong, 135 S. Ct. at 1632.

[li] See Irwin, 498 U.S. at 96; see also Sebelius v. Auburn Regional Medical Center, 133 S. Ct. 817, 824 (2013) (finding that without clear Congressional intent, courts should presume the time limitation is nonjurisdictional).

[lii] Compare Kendall, 107 U.S. at 125, with Irwin, 498 U.S. at 95–96.

[liii] Compare John R. Sand & Gravel Co., 552 U.S. 130, 138, with Irwin, 498 U.S. at 95–­96.

[liv] John R. Sand, 552 U.S. at 132–33, 139.

[lv] 28 U.S.C. § 2501 (2012).

[lvi] John R. Sand, 552 U.S. at 132.

[lvii] Id.

[lviii] Id. at 133.

[lix] Id. at 133–34. But cf. Irwin, 498 U.S. at 95–96 (disregarding implied sovereign immunity waiver).

[lx] John R. Sand, 552 U.S. at 136–37.

[lxi] See id. at 137–38.

[lxii] See Irwin, 498 U.S. at 95 (explaining the Court would not conclude that a time bar is jurisdictional unless Congress provides a “clear” statement to that effect); see also Sebelius, 133 S. Ct. at 827 (2013). Compare Irwin, 498 U.S. at 95–96 (holding statutory time limitations are nonjurisdictional), with John R. Sand, 552 U.S. at 137–38 (holding statutory time limitations are jurisdictional).

[lxiii] Irwin, 498 U.S. at 95–96.

[lxiv] Id. at 95–96 (“We therefore hold that the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States. Congress, of course, may provide otherwise if it wishes to do so.”).

[lxv] Compare John R. Sand, 552 U.S. at 136–37, with Irwin, 498 U.S. at 95.

[lxvi] See Wong, 135 S. Ct. at 1634 (explaining though the government contended § 2401(b) is jurisdictional because prior decisions have held the same “forever barred” language as jurisdictional, “the Government takes too much from Congress’s use in § 2401(b) of an utterly unremarkable phrase. The ‘shall be forever barred’ formulation was a commonplace in federal limitations statutes for many decades surrounding Congress’s enactment of the FTCA.”).

[lxvii] Judicial Conference Advisory Comm. on Appellate Rules: Public Hearing on Proposed Amendments to the Federal Rules of Appellate Procedure and Official Forms (2014).

[lxviii] 28 U.S.C. § 2107 (2012) (“(a) Except as otherwise provided in this section, no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree. (b) In any such action, suit, or proceeding, the time as to all parties shall be 60 days from such entry if one of the parties is [the U.S. government].”).

[lxix] Judicial Conference Advisory Comm. on Appellate Rules, supra note 68.

[lxx] See Bowles, 551 U.S. at 214 (holding the Court has “no authority to create equitable exceptions to jurisdictional requirements.”).

[lxxi] See 28 U.S.C. § 2107 (2012) (setting statutory time limitations and conflicting with the Court’s decisions in Wong); Judicial Conference Advisory Comm. on Appellate Rules, supra note 68.

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