   Waiver of Statutes of Limitations in Connection with Claims
             Against the Department of Agriculture

T h e S u p rem e C o u r t’s d e c isio n in Irw in v. D e p a rtm e n t o f V e te ra n s A ffa irs m a d e n o a lte ra tio n in the
     fu n d a m e n ta l ru le s g o v e rn in g w a iv ers o f s o v ereig n im m u n ity in a ctio n s a g a in s t the U n ite d S tates
     Irw in an d th e c a se s fo llo w in g it th e re fo re p ro v id e n o su p p o rt fo r the n o v e l c o n c lu sio n th a t the
     e x e c u tiv e b ra n c h h as th e d isc re tio n to d isp e n se w ith a c o n g re ss io n a lly m a n d a te d s tatu te o f lim ita ­
     tio n s in litig a tio n o r the c o m p ro m is e o f c la im s. U n le ss C o n g re ss p ro v id e s to th e c o n tra ry , a d h e re n c e
     to th e re le v a n t statu te o f lim ita tio n s re m a in s a s tric t a n d n o n -w a iv a b le c o n d itio n on s u its a g ain st
     th e fe d e ra l g o v e rn m e n t.

E n a c tm e n t o f le g isla tio n a u th o riz in g th e p a y m e n t o f c la im s b a rre d b y the s ta tu te o f lim ita tio n s u n d e r
     th e E qual C re d it O p p o rtu n ity A ct is th e n e ce ssa ry a n d c o n stitu tio n a lly a p p ro p ria te m e a n s o f sa tis­
     fy in g su ch c la im s.


                                                                                                                             June 18, 1998


                    M e m o r a n d u m O p in io n f o r t h e A s s o c ia t e A t t o r n e y G e n e r a l



   This memorandum supplements advice that we provided to you previously in
connection with the statute of limitations under the Equal Credit Opportunity Act
( “ ECOA” ), 15 U.S.C. §§ 1691—1691f (1994). See generally Statute o f Limitations
and Settlement o f Equal Credit Opportunity Act Discrimination Claims Against
the Department o f Agriculture, 22 Op. O.L.C. 11 (1998) (“ ECOA Opinion” ).1
The issues presented here as well as in our earlier ECOA Opinion arise in the
context of pending2 and potential claims against the Department of Agriculture
( “ USDA” ) based upon alleged racial discrimination during the period o f January
1983 to February 1997, in connection with the administration o f farm loans and
credit programs in violation of ECOA.3 In connection with an assessment of these
claims by the Department of Justice, we provided advice regarding various issues
including the applicable statute of limitations under ECOA, whether the limitations
period applies to administrative settlements, and whether the limitations period
may be waived.4 See ECOA Opinion, 22 Op. O.L.C. at 13. We concluded that
the executive branch does not have the legal authority intentionally to waive the
statute of limitations under ECOA. This conclusion was based upon the long­
standing principle that, unless Congress provides otherwise, the statute of limita­

   ' in analyzing the issues outlined above, we shall assume familiarity with the legal and factual matters discussed
in the ECOA Opinion and shall summarize only briefly the relevant background
   2 Pigford v. Glickman, No. Civ 1:97CV01978, 1997 WL 429426 (D.D.C. 1997).
   3 ECOA, in relevant part, prohibits any creditor from discriminating against any applicant, with respect to any
aspect of a credit transaction, on the basis o f race, color, religion, national origin, sex or marital status. 15 U S C
§ 1691(a) The statute defines a creditor to include the United States. Id. § 1691a(e), (f)
   4 In our earlier opinion, we concluded that the applicable statute of limitations under ECOA is tw o years, that
the statute of limitations applies to administrative settlements, and that it may not be waived by the United States
in litigation or in the compromise o f claims. See ECOA Opinion, 22 Op. O.L.C. at 13.


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tions governing a cause o f action against the United States is a condition on
Congress’s waiver of sovereign immunity. See id. at 14.
   We now consider in greater detail whether the Supreme Court’s decision in
Irwin v. D epartm ent o f Veterans Affairs, 498 U.S. 89 (1990), and the lower court
cases following Irwin altered or undermined this principle and thus permit the
executive branch intentionally to pay claims that are time-barred under the statute
of limitations prescribed by Congress. In Part I, we analyze the nature of statutes
of limitations governing suits against the United States. We show that Congress
has plenary and exclusive authority to impose conditions upon the waiver of sov­
ereign immunity, and upon the executive’s authority to obligate the funds of the
United States, and that it has long been settled law that a statute of limitations
ordinarily is such a condition. In Part II, we address the scope and effect of Irwin
and the relevant lower court decisions. We conclude that Irwin made no alteration
in the fundamental rules governing waivers of sovereign immunity in actions
against the United States. Irwin and the cases following it therefore provide no
support for the novel conclusion that the executive has the discretion to dispense
with a congressionally mandated statute of limitations in litigation or the com­
promise of claims.5 Unless Congress provides to the contrary, adherence to the
relevant statute of limitations remains a strict and non-waivable condition on suits
against the federal government.6
   We understand that Congress is considering, and the administration strongly
endorses, legislation that would authorize the payment of time-barred claims under
ECOA. In accordance with our analysis below, the enactment of such legislation
is the necessary and constitutionally appropriate means of satisfying such claims.

       I. Statutes of Limitations as a Condition on the Waiver of Sovereign
                                      Immunity

  The doctrine of sovereign immunity precludes suit against the United States
without the consent of Congress, and the terms of its consent define the conditions
upon which such claims are permitted. See United States v. Mottaz, 476 U.S.
834, 841 (1986); United States v. M itchell, 445 U.S. 535, 538 (1980). As Justice
Holmes explained in Reid v. United States, 211 U.S. 529 (1909), “ Suits against
the United States can be maintained, of course, only by permission of the United
States, and in the manner and subject to the restrictions that it may see fit to
impose.” Id. at 538; see FHA v. Burr, 309 U.S. 242, 244 (1940); Munro v. United
States, 303 U.S. 36, 41 (1938). It is a cardinal rule of our system, furthermore,
that the decision to waive sovereign immunity is the exclusive prerogative of Con­
gress. See generally OPM v. Richmond, 496 U.S. 414 (1990); Finn v. United

   5 We thus adhere to the views we expressed earlier on the significance of Irwin. See ECOA Opinion, 22 Op
O .L C . at 14 n.3
   6 Congress did not provide to the contrary in ECOA and the statute is subject to the general principles discussed
below


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  Waiver o f Statutes o f Limitations in Connection with Claims Against the Department o f Agriculture


States, 123 U.S. 227 (1887). The executive and judicial branches therefore may
not, without statutory authorization, waive the conditions upon which Congress
consents to suits against the government. See id. at 229.
   Congress’s exclusive authority over the terms upon which the United States
may be sued is rooted in Congress’s plenary authority over the appropriation of
federal funds. The Appropriations Clause of the Constitution provides, “ No
money shall be drawn from the Treasury, but in Consequence of Appropriations
made by Law.” U.S. Const, art. I, §9, cl. 7. As a consequence, no money may
be paid on a claim against the government unless a statute authorizes payment
or mandates compensation. United States v. Testan, 424 U.S. 392, 398-400
(1976); see also Richmond, 496 U.S. at 424. The Supreme Court has emphasized
that a fundamental purpose of the Appropriations Clause is to ensure that the
government’s funds are spent only “ according to the letter of the difficult judg­
ments reached by Congress.” Richmond, 496 U.S. at 428; see Cincinnati Soap
Co. v. United States, 301 U.S. 308, 321 (1937) (“ no money can be paid out
of the Treasury unless it has been appropriated by an act of Congress” ); Reeside
v. Walker, 52 U.S. (11 How.) 272, 291 (1850) ( “ not a dollar” of the funds in
the Treasury may be “ used in the payment of any thing not thus previously sanc­
tioned” by Congress). Thus, “ in the absence of clear Congressional authority,
the other branches of government cannot effect payment of Treasury funds.”
Speers v. United States, 38 Fed. Cl. 197, 202 (1997) (citing Richmond).
   The Supreme Court has recognized in many contexts the constitutional principle
that federal monies can be paid only in accordance with the rules Congress has
prescribed. In OPM v. Richmond, for example, the Court rejected the argument
that the government could be estopped from denying monetary benefits not other­
wise permitted by statute.7 See Richmond, 496 U.S. at 424-29. In Richmond, a
retired government employee lost certain benefits because, on the basis of erro­
neous advice from OPM, he took a job that paid a salary that placed him outside
the statutory eligibility limits for the government benefits. Id. at 417-18. The
Court rejected the estoppel argument and enforced the statutory ineligibility
requirements because to require the payment of funds in contravention of statutory
terms would “ render the Appropriations Clause a nullity.” Id. at 428. “ If agents
of the Executive were able, by their unauthorized oral or written statements to
citizens, to obligate the Treasury for the payment of funds,” the Court reasoned,
“ the control over public funds that the [Appropriations] Clause reposes in Con­
gress in effect could be transferred to the Executive.” Id. The Court cautioned
that estoppel would, in effect, empower executive officials to dispense with statu­
tory requirements not to their liking, by giving legal effect to their incorrect
advice. Id. Further, the Court observed, executive officials are not free to ignore

   7The Court in Richmond left open the possibility that “ extreme circumstances . . . might support estoppel in
a case not involving payment from the Treasury ” 496 U.S. at 434 (emphasis added). “ As for monetary claim s,”
the Court concluded, “ there can be no estoppel, for courts cannot estop the Constitution.” Id.


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                           Opinions o f the Office o f Legal Counsel in Volume 22


statutory limitations on the payment of funds and to do so knowingly is a federal
crime. Id. at 430 (citing 31 U.S.C. §§ 1341, 1350, the Anti-Deficiency Act).
   The courts and the executive branch have long acknowledged that Congress’s
enactment of a statute of limitations applying to suits against the United States
is a condition on Congress’s consent to suit. It is a “ basic rule” that “ [w]hen
waiver legislation contains a statute of limitations, the limitations provision con­
stitutes a condition on the waiver o f sovereign immunity.” Block v. North D akota,
461 U.S. 273, 287 (1983); see United States v. Dalm, 494 U.S. 596, 608 (1990);
M ottaz, 476 U.S. at 841; see also Memorandum for James W. Moorman, Assistant
Attorney General, Land & Natural Resources Division, from John M. Harmon,
Assistant Attorney General, Office of Legal Counsel, Re: Pueblo o f Taos v.
Andrus at 2 n .l (Mar. 30, 1979). The imposition by Congress of a statute of
limitations creates a “ condition or qualification of the right to a judgment against
the United States” and, unless Congress may be deemed to have “ conferred
authority upon any of [the government’s] officers to waive the limitation imposed
by statute,” the limitations requirement bars judgment against the United States
and may not be waived.8 Finn, 123 U.S. at 232-33.
   This principle has repeatedly been reaffirmed by the Supreme Court and lower
courts. For example, in Munro v. United States, 303 U.S. 36 (1938), a United
States Attorney erroneously advised a claimant that service of process would toll
the statute of limitations. The claim was filed after the limitations period had
run, and the Supreme Court held that the suit was time-barred. Id. at 41. The
U.S. Attorney “ had no power to waive conditions or limitations imposed by
statute in respect of suits against the United States.” Id. (citing Finn). See also
United States v. G arbut O il Co., 302 U.S. 528, 534 (1938) (holding that an agency
head was without authority to waive the requirement of the statute of limitations).
To the same effect, and more recently, in Overhauser v. United States, 45 F.3d
 1085 (7th Cir. 1995), the court refused to give effect to an agreement by which,
plaintiffs asserted, the government had waived the applicable statute of limitations.
Chief Judge Posner wrote that “ government officers have no general power to
waive statutes of limitations in tax cases” and may do so only where there is
a specific statutory authorization for such a waiver. Id. at 1088.
   The power to modify or waive a statute of limitations imposed by Congress
thus is entirely a prerogative of Congress. Congress alone has the power to deter­
mine the circumstances, if any, under which a claim time-barred under the relevant
statute of limitations can be paid because of equitable considerations. As the
Supreme Court emphasized in the Richmond case, the “ whole history and prac­
tice” of Congress “ with respect to claims against the United States” demonstrate

   8 We em phasize at the outset that the issue presented here is limited to statutes of limitations involving suits
against the United States In the case of non-federal defendants, a congressionally established statute of limitations
is a procedural device to protect defendants and promote judicial economy It is not a condition on the waiver
of sovereign immunity and, accordingly, it generally may be waived by the defendant See, e g., Lawyers Title Ins
Corp v Dearborn Title Corp., 118 F.3d 1157, 1166 (7th Cir. 1997).


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  Waiver o f Statutes o f Limitations in Connection with Claims Against the Department o f Agriculture


“ the impossibility” of honoring claims against the government on the basis of
equity but “ in violation of a statute.” 496 U.S. at 430. Congress has addressed
the problem of meritorious but time-barred claims in a variety of ways, but its
very actions in doing so bear witness to the principle that the decision to allow
claims barred by a statute of limitations is exclusively congressional. Id. at 430-
31. For example, from time to time Congress has passed legislation specifically
designed to ameliorate the harsh effects of statutes of limitations by creating
exceptions or modifications to the statute.9 Under some statutory schemes, Con­
gress has specifically empowered an executive agency to create or modify the
applicable limitations period and thus to authorize its waiver in individual cases.10
More generally, Congress has created the “ congressional reference” procedure,
28 U.S.C. §§ 1492, 2509 (1994), which permits the consideration of the equities
of time-barred claims, with Congress retaining the ultimate decision as to pay­
ment 11 and circumstances in which the statute of limitations can be disregarded.12
   Thus, the long-established axiom is that Congress controls the waiver of sov­
ereign immunity. Unless it authorizes another branch to ignore or modify the
conditions upon which it waives that immunity, only Congress may establish or
modify the terms under which the funds of the United States are to be obligated.

   9See, e.g.. Omnibus Budget Reconciliation Act o f 1989, Pub. L. No 101-239, §10302, 103 Stat 2106, 2481
(authorizing agency to waive statute o f limitations where a claimant’s untimely filing was caused by incon-ect advice
from the agency), Priv. L No 99-3, 100 Stat 4314 (1986) (waiving statutory deadline for particular claimant where
claimant’s petition was untimely due to misinformation from the agency), Legislative Branch Appropriations Act,
 1993, Pub L No 102-392, 106 Stat 1703 (1992) (extending statute o f limitations for suits for bodily injury and
death under Migrant and Seasonal Workers Protection Act); Pub. L No 103-104, 107 Stat. 1025 (1993) (waiving
applicable statute o f limitations for takings cases arising out o f creation o f new national recreation area).
    l0See, e g , 42 U.S.C §405(g) (1994) (claimant must seek judicial review within 60 days “ or within such further
time” as the agency may provide), 26 U.S.C. § 6532(a)(2) (1994) (statute of limitations may be extended for such
time as agreed upon in writing by the agency and the claimant), see BCS Financial Corp. v. United States, 118
F.3d 522, 525 (7th C ir 1997) (when Congress has empowered an agency to create or modify the time limitations
without further congressional action, “ its application to a particular case can be waived” by the agency by virtue
of its statutory authonty)
    11 A congressional reference advises Congress whether, based on equitable considerations, a claim should be paid
notwithstanding, inter alia, the “ bar o f any statute o f limitation ” 28 U.S.C. § 2509(c); Menominee Indian Tribe
o f Wisconsin v. United Stales, 39 Fed Cl 441, 456-57 (1997); see also Banfi Products Corp v United Stales,
40 Fed Cl 107 (1997); Bear Claw Tribe Inc v. United States, 37 Fed. Cl. 633 (1997). Under congressional reference
procedures, either House of Congress may, by passage of a bill, refer a claim against the United States to the
Court of Federal Claims. 28 U S C § 1492. A judge o f the Court o f Federal Claims, acting as a “ hearing officer,”
makes an initial determination whether a claimant's demand is a “ legal or equitable claim” or merely a “ gratuity,”
and rccommends the amount, if any, that is legally or equitably due the claimant 28 U S C . § 2509(c). The report
and recommendation o f the hearing officer is then reevaluated by a three-judge review panel of the court, before
the report and recommendation is sent to Congress Id § 2509(d). A claim is not paid until Congress specifically
appropriates the award by statute See generally Subcommittee on Immigration and Claims of the House Comm
on the Judiciary, 105th Cong , Rules o f Procedure fo r Private Claims Bills (Comm Print 1997), see, e g , Departments
of Commerce, Justice, and Slate, the Judiciary, and Related Agencies Appropriations Act, 1998, Pub. L No 105—
 119, § 114, 111 Stat. 2440, 2461 (1997) (appropriating funds for award recommended in Estate o f Braude v. United
States, 35 Fed Cl 99 (1996). approved by review panel, 38 Fed Cl. 476 (1997)).
    12 We have examined the statutory language o f ECOA to determine whether the statute confers upon the Executive
any discretion to waive the statute of limitations requirement We find nothing in ECOA to suggest that Congress
has done so. Where Congress has conferred such authonty, it has done so by affirmatively delegating some manner
of discretion over the statute o f limitations See, e g , 42 U S C. § 405(g) (claimant must seek judicial review within
60 days “ or within such further tim e” as the agency may provide), 26 U.S.C. § 6532(a)(2) (statute of limitations
may be extended for such time as agreed upon in w nting by the agency and the claimant). Here, the statute is
silent. Accordingly, the general prohibition on the waiver of a statute o f limitations is applicable to ECOA.


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                             Opinions o f the Office o f Legal Counsel m Volume 22


For the executive branch to assert a general authority intentionally to waive stat­
utes of limitations would represent a fundamental and far-reaching departure from
constitutional principles previously recognized by all three branches of the govern­
ment. To allow the executive to enlarge, in its discretion, a congressional waiver
of sovereign immunity and to obligate the funds of the United States without
statutory authorization would effect a significant alteration in the constitutional
separation of powers, as traditionally understood, in an area of undisputed legisla­
tive primacy. It would be implausible to read a Supreme Court decision to cause
such a seismic shift in our system of government unless the Court expressed a
clear intention to do so.
   We turn now to consider whether the Supreme Court’s decision in Irwin
wrought a fundamental change in the long-standing principles we have discussed.

                                    II. The Scope and Effect of Irwin

   A. The Supreme Court’s Decision

   In Irwin v. Departm ent of Veterans Affairs, the Court held that a statute of
limitations in a suit against the United States is presumed to be subject to the
doctrine of equitable tolling. 498 U.S. at 96. The Court addressed the issue in
the context of a late-filed Title V II action against the government. Id. at 91. At
issue was whether “ late-filed claims are jurisdictionally barred.” Id. at 92. The
Court’s preliminary conclusion that the claim at issue “ did not strictly comply”
with the filing deadline, did not “ end [its] inquiry.” Id. at 93. Rather, the Court
addressed whether a late-filed claim may be deemed to have satisfied the statute
of limitations based upon the doctrine of equitable tolling.13 Id.
   The Court began its analysis by observing that in the context of a suit against
the government, the Title VII statute of limitations “ is a condition to the waiver
of sovereign immunity and thus must be strictly construed.” Id. at 94 (citation
omitted). However, the Court noted the customary availability of equitable tolling
in suits between private litigants,14 and reasoned that:

           [M]aking the rule of equitable tolling applicable to suits against
           the Government . . . amounts to little, if any broadening of the
           congressional waiver. Such a principle is likely to be a realistic

    13 Equitable tolling principles would allow a late-filed claim to be heard where “ the claimant has actively pursued
his judicial remedies by Filing a defective pleading dunng the statutory period, or where the complainant has been
induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Irwin, 498 U S . at
96 (footnotes omitted), see ECOA Opinion, 22 O p O L.C. al 2 3 -2 6 (addressing equitable tolling principles generally
and applying the doctrine to claims o f alleged discrimination by USDA)
    14 The relevance o f this point presumably is lhat Congress’s toleration of the courts’ practice of applying equitable
tolling in these suits w ithout any express statutory authorization is evidence that Congress regards the courts’ practice
as consistent with Congress’s intentions in enacting statutes o f limitations in the context of suits between private
litigants.


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  Waiver o f Statutes o f Limitations in Connection with Claims Against the Department o f Agriculture


          assessment of legislative intent as well as a practically useful prin­
          ciple of interpretation.

Id. at 95. The Court therefore adopted as a “ general rule” a “ rebuttable presump­
tion” that the doctrine of equitable tolling can be applied to suits against the
United States. Id.
   Irwin does not assert any intention on the Court’s part to make a fundamental
modification in the principles governing waivers of sovereign immunity. Further­
more, the Court’s reasoning is most naturally read as a reconfirmation o f those
principles. The opinion of the Court explicitly reiterated the long-standing view
that statutes of limitations are congressionally imposed conditions on Congress’s
waiver of sovereign immunity. The considerations the Court adduced in adopting
a presumption that equitable tolling applies— Congress’s likely intentions and the
de minimis effect the availability of equitable tolling would have on the scope
of Congress’s waiver of immunity— are relevant under the traditional under­
standing of Congress’s plenary authority in this area. Precisely because Congress’s
authority is complete, its intentions are controlling and the Court should adopt
the approach most likely to effectuate those intentions, including a likely intention
to permit courts to deem the statute of limitations satisfied, here as elsewhere,
by claimants who meet the rigorous standards of equitable tolling.15 There is no
obvious justification for interpreting Irwin as anything other than the application
of settled principles to resolve a particular issue on which earlier cases were
ambiguous.
   We have considered, however, the possibility that Irwin so altered the legal
principles governing this area that the Executive can waive a statute of limitations
on the basis of equitable considerations alone. In support of this conclusion, a
“ waiver argument” might be fashioned as follows: prior to Irwin, it was assumed
that the Constitution required the executive and judicial branches to respect stat­
utes of limitations as absolute bars on late-filed claims against the United States;
rigid maintenance of the limitations periods Congress prescribed was a necessary
corollary of recognizing Congress’s exclusive authority over the waiver of sov­
ereign immunity. But Irwin may be read as demonstrating that the judicial branch
is not absolutely bound by a congressionally prescribed limitations period in cir­
cumstances where an untimely claim deserves recompense on equitable grounds.
Thus, the waiver argument would conclude, if courts are not bound absolutely
by a limitations period, there is no reason that the executive branch does not
have a similar discretion that would allow it to modify or waive a statute of limita­
tions where, in the executive’s determination, there are compelling equitable rea­
sons for doing so.

   15 An improperly narrow construction of Congress’s waiver o f sovereign immunity, like an unauthonzed judicial
expansion of the waiver, would be a usurpation o f Congress’s prerogative See Irwin, 498 U.S. at 94 (the Court
is obliged “ not to ‘assume the authority to narrow the waiver that Congress intended,’ or construe the w aiver ‘unduly
restrictively’ ’’) (citation omitted)


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                    Opinions o f the Office o f Legal Counsel in Volume 22


  We do not find this interpretation of Irwin tenable. First, the waiver argument
ignores Irwin's pointed restatement o f the traditional view that “ the time Limits
imposed by Congress in a suit against the Government involve a waiver of sov­
ereign immunity” and that Congress’s imposition of a limitations period is “ a
condition to the waiver of sovereign immunity.” 498 U.S. at 96, 94. A mere
procedural requirement that can be dispensed with by another branch of govern­
ment scarcely could be called a condition to recovering a money claim from the
United States, and it would “ involve” Congress’s waiver of sovereign immunity
only in the most trivial sense. Under the Court’s reasoning, if a claim&nt satisfies
a statute of limitations by virtue of equitable tolling, the statutory condition prece­
dent has been met and the consent o f Congress has been given. The opinion does
not suggest that the statute of limitations is no longer a condition precedent, only
that the condition may be satisfied by application of equitable tolling.
   Second, the waiver argument ignores the reasons the Court gave in Irwin for
adopting a rebuttable presumption that equitable tolling is available. The Court
observed that its decision would “ amount[] to little, if any, broadening of the
congressional waiver” of sovereign immunity, and concluded that the presumption
was consistent with Congress’s intent in waiving sovereign immunity and sub­
jecting the government to claims available against private parties. Id. at 95. In
contrast, the conclusion that the executive may waive statutes of limitations would
apparently vest the executive with full discretion to pay otherwise time-barred
claims at its choosing, surely a quite substantial “ broadening of_the congressional
waiver.” No limiting principles parallel to those governing equitable tolling exist
to guide the Executive’s exercise o f this discretion, and even if the Attorney Gen­
eral were to evolve such principles one could not impute to Congress the intent
of permitting the Executive to act on them, at least with respect to statutes of
limitations enacted in ignorance o f their existence and content. Finally, in order
to read Irwin as licensing executive waiver of limitations statutes we would have
to reject the most natural reading of the decision in favor of an interpretation
that attributes to the Court the intention of reworking long-standing and funda­
mental principles in an opinion that provides no indication of such an intention.
We conclude that Irwin by itself provides no support for the waiver argument.

  B. Post-Irwin Cases

  Irwin has been the subject of extensive and sometimes inconsistent lower court
interpretation since it was decided. We have considered, therefore, the possibility
that post -Irwin caselaw extends the scope or meaning of the decision far enough
to encompass executive waiver of statutes of limitations. We begin by noting that
the Supreme C ourt’s own cases before and after Irwin are entirely free of any
indication that Irwin marked a departure from its well-established jurisprudence
regarding sovereign immunity. Only months before issuing its decision in Irwin,

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  Waiver o f Statutes o f Limitations m Connection with Claims Against the Department o f Agriculture


the Court reaffirmed that statutes of limitations are mandatory conditions upon
Congress’s consent to suit, United States v. Dalm, 494 U.S. 596, 608 (1990),
a proposition that Irwin itself reiterates. 496 U.S. at 94. Following Irwin, in United
States v. Williams, the Court once again emphasized that a waiver of sovereign
immunity may not be enlarged “ beyond the purview of the statutory language,”
514 U.S. 527, 531 (1995) (citation omitted), language that is difficult to reconcile
with the waiver argument reading of Irwin.16 The Supreme Court has to date
given no indication that it views Irwin as a landmark decision on the constitutional
separation of powers.
   The vast majority of lower court decisions following Irwin clearly reaffirm the
rule that the government may not waive statutes of limitations. Many decisions,
indeed, reaffirm this basic principle without addressing the argument that Irwin
might have changed it,17 a fact that supports our conclusion that nothing in Irwin
itself provides a basis for arguing that the executive now possesses a generalized
waiver authority. Among the cases that actually discuss the significance o f Irwin,
some courts have concluded that Irwin did not alter the rule that statutes of limita­
tions are a strict condition on the waiver of sovereign immunity in suits against
the United States.18 These cases obviously support the conclusion that Irwin did
not fundamentally rewrite the law governing this area.
   Some courts, in cases involving a claim that equitable tolling should be applied,
have stated that because statutes of limitations under Irwin are generally subject
to equitable tolling they are not “jurisdictional” in nature, as was assumed before

    16 Even with regard to Irwin’s treatment of equitable tolling, the Supreme Court has recently held that the doctrine
does not apply in every case and to every statute o f limitations, but depends upon “ the text o f the relevant statute ”
United States v Beggerly, 524 U S 38, 48 (1998). Indeed, the Court’s decision in Beggerly further supports our
understanding that Irwin simply permits the application of equitable tolling to suits against the government under
certain circumstances and where consistent with the specific statute in question Id
    i7See, e g , Flory v. United States, 138 F 3d 157, 159 (5th Cir 1998), Mtllares Guiraldes de Tmeo v United
States. 137 F 3d 715, 719-20 (2d C ir 1998); Loudner v United States, 108 F.3d 896, 900 (8th Cir. 1997), Brown
Park Estates-Fatrfield Dev. Co. v. United States, 127 F.3d 1449, 1454 (Fed Cir 1997), Dahn v U nited States,
127 F 3d 1249, 1252 (10th Cir 1997), Nesovic v United States, 71 F.3d 776, 777-78 (9th Cir 1995), Widdoss
v. Secretary o f HHS, 989 F 2d 1170, 1 172 (Fed C ir), cert denied, 510 U S 944 (1993), Richmond, Fredericksburg
& Potomac R R. i*. United States, 945 F.2d 765, 769 (4th Cir. 1991), Hart v United States, 910 F.2d 815, 818-
19 (Fed Cir 1990); Levy v GAO, No 97 CIV 4016 (MBM), 1998 WL 193191, at *1, 3 (S D.N Y Apr 22, 1998);
Wrona v United States, 40 Fed. Cl 784. 787 (1998), Alder Terrace Inc v United States, 39 Fed Cl. 114 (1997),
a ffd , 161 F 3d 1372 (Fed Cir 1998), Entines v United Slates, 39 Fed Cl 673, 678 (1997). Campbell v United
States, 38 Fed Cl 524, 527, a f f d , 132 F 3 d 53 (1997), cert denied, 523 U S 1078 (1998), McDonald v United
States, 37 Fed. Cl 110, 113 (1997), a ffd , 135 F 3d 778 (1998), RTC v M inimon, 935 F Supp 838. 841 (E D .
La 1996), Catellus Dev Corp i' United States, 31 Fed Cl. 399, 404 (1994), Mason v. United States, 27 Fed
Cl. 832, 836 (1993), Leiughhn v United States, 22 Cl Ct 85, 99 (1990), a jfd m em , 975 F 2 d 869 (Fed Cir.
1992)
           eg .. RHI Holdings, Inc v United Suites. 142 F 3d 1459, 1461-63 (Fed Cir 1998), Lawyers Title Ins.
Corp. v. Dearborn Title Corp., 118 F.3d 1157, 1166 (7th C ir 1997), Bath Iron Works Corp v United States .
20 F 3d 1567, 1572 n.2 (Fed C ir 1994), Vmtilla v United States. 931 F 2d 1444, 1446 (11th Cir 1991), Scott
v Reno, No 97 C iv 5203 (RPP). 1998 WL 249178, at *3 (S D N.Y May 18, 1998), D illard v Runyon, 928 F
Supp. 1316, 1324 ( S D N Y 1996), a ffd , 108 F 3d 1369, 1373-74 (2d Cir 1997), Her v Secretary o f HHS, 33
Fed Cl 542. 544 (1995), c f Calhoun County v United States, 132 F 3d 1100, 1104 (5th Cir 1998) (Irwin reinter­
preted the intent behind congressional waivers of sovereign immunity but did not alter the nature of the conditions
of (hat waiver)


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Irwin.]9 The question whether Irwin modified the jurisdictional nature of limita­
tions provisions has various implications for federal court practice and procedure;
for example, if a statute of limitations applicable to a suit against the government
is no longer deemed jurisdictional, failure to comply with it is presumably
“ merely an affirmative defense which the [government] has the burden of estab­
lishing.” 20 But the proper resolution of this debate over the effect of Irwin on
the jurisdiction of the federal district courts is irrelevant to the question addressed
here.
  The conclusion that a statute o f limitations is not a limitation on a court’s juris­
diction does not in any way imply that the executive branch can intentionally
waive compliance with the statute. The two concepts are not the same.21 A court
does not lack jurisdiction merely because the plaintiff fails to satisfy a condition
precedent to obtaining judgment in its favor. See Bell v. Hood, 327 U.S. 678,
683 (1946). By the same token, the fact that a court has jurisdiction in no way
implies that Congress has not imposed a condition precedent on the plaintiffs
ability to obtain a judgment.
   The Supreme Court recognized the latter point long ago in a case involving
compliance with a statute of limitations in a suit against the government. “ As
the United States are not liable to be sued, except with their consent, it was com­
petent for Congress to limit their liability, in that respect, to specified causes of
action, brought within a prescribed period.” Finn, 123 U.S. at 232, citing Nichols
v. U nited States, 74 U.S. (7 Wall.) 122, 126 (1868). The Court concluded that
the pending claim, “ although by reason o f its character ‘cognizable by the
[court],’ cannot properly be made the basis of a judgment in that court” because
it was barred by the statute of limitations. Id. at 231-32. The creation of a statute
of limitations “ makes it a condition or qualification of the right to a judgment

   19 See, e g., Fadem v. U nited States, 52 F.3d 202, 206 (9th C ir 1995); G lam er v Department o f Veterans Adminis­
tration, 30 F 3d 697, 701-02 (6th Cir 1994); Washington v Garrett, 10 F.3d 1421, 1437 (9th Cir 1993); Ynctan
v Departm ent o f the A ir Force, 943 F.2d 1388, 1391 (5th Cir 1991), see also Becton v Perm, 946 F. Supp 84,
86-87 (D D C. 1996) (questioning whether, after Irwin, statutes o f limitation are jurisdictional).
   20Schm idt v. United States, 933 F.2d 639, 640 (8th Cir 1991) (citing Fed. R. Civ. P 12(b)(1)). The Schmidt
court noted other consequences that may follow from treating statutes of limitations as non-junsdictional: the govern­
ment should present the issue through a Rule 56 motion for summary judgment (or, presumably, a Rule 12(b)(6)
motion for failure to state a claim) rather than under Rule 12(b)(1) (asserting a jurisdictional defect), and the court
should view the facts concerning compliance with the statute in the light most favorable to the claimant Id. at
640, Slaaten v United States, 990 F 2d 1038, 1043 n.5 (8th Cir 1993) (citing Schmidt ), but see Loudner v United
States, 108 F.3d 896, 900 n 1 (8th Cir. 1997) (statutes of limitations are conditions precedent to the waiver of
sovereign immunity and “ failure to sue within the penod o f limitations is not simply a waivable defense, it deprives
the court of jurisdiction to entertain the action” ).
   2'T h e assumption that if statutes of limitations are not “jurisdictional,” they are therefore waivable rests on
a misinterpretation o f the many meanings that are ascribed to the term. See Kanar v United States, 118 F 3d 527,
529-30 (7th Cir 1997). The term “ jurisdiction” is a short-hand that is used to refer to many things, including
the subject matter jurisdiction o f a court and whether a claim is one for which relief can be granted. See, e.g..
Belt v. H ood, 327 U S. 678, 682 (1946), Kanar, 118 F 3 d at 5 29-30, Spruill v. Merit Systems Protection Bd., 978
F.2d 679, 6 87-88 (Fed Cir. 1992); see also Carlisle v United States, 517 U S . 416, 434-35 (1996) (Ginsburg,
Souter, Breyer, JJ., concurring) (observing the many meanings, uses and misuses of the term “ jurisdiction” ) Here,
we are concerned with statutes of limitations only insofar as they constitute a condition precedent to the assertion
of a valid claim for which relief can be granted.


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   Waiver o f Statutes o f Limitations in Connection with Claims Against the Department o f Agriculture


against the United States.” 22 Id. at 232. As Finn clearly states, regardless of
whether a federal court has jurisdiction over a claim against the government,
Congress’s imposition of a statute of limitations creates a condition precedent that
a plaintiff must satisfy in order to establish a claim against the United States
for which relief can be granted. If a claimant has not satisfied this statutory condi­
tion precedent, sovereign immunity has not been waived.
  Several of the cases discussing Irwin have specifically considered whether Irwin
makes a statute of limitations in a suit against the United States subject to waiver
and have concluded that the statute of limitations is not waivable.23 These
decisions clearly rest on the proposition that because a statute of limitations is
one of the conditions that Congress placed on its consent to be sued, the executive
branch has no authority, through waiver of the statute of limitations, to usurp
the congressional prerogative to determine when the United States may be sued.
As one court observed, “ Tolling is not the same as waiving. Presumably, there­
fore, Irwin merely holds that those time limits, while jurisdictional, can be equi­
tably tolled in certain circumstances.” Bath Iron Works Corp. v. United States,
20 F.3d 1567, 1572 n.2 (Fed. Cir. 1994).
  Nothing in Irwin suggests that statutes of limitations are anything other than
a term upon which the government consents to be sued. Whether some courts
interpret Irwin to suggest that statutes of limitations are non-jurisdictional, does
not provide authority for the conclusion that they are waivable. Thus, the vast
majority of lower court cases decided since Irwin support or, at a minimum, are
fully in accord with the traditional view that statutes of limitations that condition
Congress’s consent to suit are not waivable. The debate over Irwin’s implications
for federal court jurisdiction in no way undermines this weight of authority. See
supra notes 16-17 (collecting cases).
   There are two post-/rvvm cases, involving statutes of limitations that are condi­
tions on the waiver of sovereign immunity,24 that hold that the government’s
failure to plead a statute of limitations defense in its answer may result in the
loss of the defense. See Harris v. Secretary o f Veterans Affairs, 126 F.3d 339
(D.C. Cir. 1997); Cedars-Sinai M edical Ctr. v. Shalala, 125 F.3d 765, 770 (9th

   22 Finn also stated that it was the “ duty” of a court to dismiss an untimely claim against the government regardless
of “ whether limitation was pleaded or not ” 123 U.S at 232
   23 Lawyers Title Ins Corp., 118 F 3d at 1166; Alder Terrace, Inc , 39 Fed Cl at 120, Her, 33 Fed. Cl. at 544;
McDonald, 37 Fed Cl at 113, RTC v Miramon, 935 F. Supp at 841; cf. BCS Financial Corp., 118 F.3d at 525
(statute of limitations may be waived where it is not congressional prerequisite to suit and agency is statutorily
authorized to waive the limitations period)
   24 As we noted above, supra at note 10 and accompanying text, limitations periods over which Congress has
vested an executive agency with discretion are not conditions on Congress’s waiver of sovereign immunity The
cases that hold that the government’s failure timely to plead such a statute of limitations as an affirmative defense
resulted in forfeiture of the defense are therefore irrelevant to the question we address in this part of our memorandum
See, e g . Bowden v. United States, 106 F.3d 433, 437 (D C . Cir 1997), Johnson v Sullivan, 922 F 2 d 346, 355
(7th Cir 1990), Weinberger v Sa//I,422 U.S 749,763 (1975)


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Cir. 1997).25 In H arris , a panel o f the D.C. Circuit concluded that a statute of
limitations may be forfeited under the Federal Rules of Civil Procedure. 126 F.3d
at 343—44. The court rested its decision on pre-Irwin circuit precedent, see Mondy
v. Secretary o f the Arm y , 845 F.2d 1051 (D.C. Cir. 1988), and reasoned that the
plain meaning of Federal Rule o f Civil Procedure 8(c) and the Rule’s underlying
policy o f fair notice require the government to plead the defense or risk “ for­
feiture’ ’ o f the defense. 126 F.3d at 343, 346.
   H arris did not cite the Supreme Court’s Irwin decision, nor did it address the
doctrine of sovereign immunity and the constitutional principles that determine
when and by whom immunity is waived. Because it fails to address long-standing
sovereign immunity doctrine, H arris casts little light on the scope of that doctrine
today. In addition, because Harris neither relies upon nor addresses Irwin, Harris
cannot be read for the proposition that Irwin reversed long-standing Supreme
Court caselaw concerning statutes of limitations. Even on the assumption that
Harris was correctly decided, its conclusion that a procedural default by the
government might entitle a time-barred plaintiff to avoid the effect of a statute
of limitations provides no support for the proposition that the government may
intentionally waive the statute of limitations. Harris is a case about the executive’s
obligations under the Rules of Civil Procedure, not about its discretion to disregard
the limitations Congress has placed on the payment of federal funds.
   In Cedars-Sinai, a panel of the Ninth Circuit considered a fact pattern similar
to that at issue in H arris : the government had failed to plead the statute of limita­
tions or indeed to mention it until it filed a reply memorandum in support of
its motion to dismiss the action. 125 F.3d at 770. In reaching the same conclusion
as the H arris court, that the government’s failure to plead the defense could enable
a late-filing claimant to evade the time bar of the statute, Cedars-Sinai cited Irwin
for the proposition that statutes o f limitations are not “jurisdictional,” and on
that basis asserted that “ the statute of limitations may be waived by the” govern­
ment. Id. at 770-71. The court briefly explained that “ where the language of
a statute of limitations does not speak of jurisdiction, but erects only a procedural
bar, the Supreme Court has stated that recognition of traditional exceptions such
as equitable tolling, waiver, and estoppel does little to broaden the congressional
waiver of sovereign immunity.” Id. at 770 (citing Irwin, 498 U.S. at 95).
   Cedars-Sinai does indeed speak in terms o f executive “ waiver” of a statute
of limitations, but we do not believe that it provides a proper basis for concluding
that the executive may intentionally dispense with a congressionally prescribed
limitations provision. As a preliminary matter, we note that the case did not con­
cern or even address an attempt by the executive to permit a late-filing claimant

  25 The holdings in Harris and Cedars-Sinai are in tension with Supreme Court precedent’ in United States v
Sherwood, 312 U S 584 (1941), the Court held that the government’s consent to suit is limited by statute and
that C ongress’s consent may not be affected by, nor enlarged by, the Federal Rules of Civil Procedure. Id. at 589-
90 In discussing the cases’ relevance to the question we are considering we do not mean to imply that they are
correct.


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  Waiver o f Statutes o f Limitations in Connection with Claims Against the Department o f Agriculture


to avoid the bar of the statute of limitations. Indeed, in Cedars-Sinai, the executive
was vigorously asserting that the claimant was time-barred, and the precise ques­
tion before the court was whether the government had raised the question too
late. More importantly, the court’s rationale is unpersuasive as applied to inten­
tional waiver. As we have already discussed, it is incorrect to assume that the
executive is free to waive the application of a statute of limitations because the
statute is not jurisdictional for purposes of federal court practice and procedure.
Furthermore, the Cedars-Sinai court’s paraphrase of the Supreme Court’s rea­
soning in Irwin significantly misstates what the Supreme Court actually said: Irwin
did not rest the presumption that equitable tolling is available on whether the
statute of limitations “ speak[s] of jurisdiction,” nor did it describe a statute of
limitations that does not mention jurisdiction as “ only a procedural bar,” or state
that recognizing “ traditional exceptions such as . . . waiver, and estoppel does
little to broaden the congressional waiver.” Compare Cedars-Sinai, 125 F.3d at
770, with Irwin, 498 U.S. at 95.
   Given the absence of any discussion of Irwin in Harris and the questionable
treatment of Irwin in Cedars-Sinai, neither case leads us to conclude that Irwin
altered the long-standing principle that the executive branch lacks an independent
authority to waive a statute of limitations that is a condition on bringing suit
against the United States. Even accepting the holdings of both cases, neither
Harris nor Cedars-Sinai actually involved or addressed the power of the executive
branch intentionally to waive the statute of limitations in order to benefit a meri­
torious but time-barred claimant. Thus, upon review of Irwin and subsequent
caselaw, we find no basis on which to conclude that the executive intentionally
may waive a statute of limitations that is a “ condition or qualification of the
right to a judgment against the United States,” where Congress has vested the
executive with no authority over the condition. Finn, 123 U.S. at 232.

                                         III. Conclusion

   We find no basis that would permit us to conclude that the Attorney General
possesses a general authority to waive statutes of limitations or that ECOA itself
confers specific authority to do so. The statute of limitations in ECOA is a condi­
tion to Congress’s consent to suit against the government and the Executive there­
fore has no power to pay time-barred claims as if they were fully valid. To do
so would be to usurp Congress’s authority over the waiver of sovereign immunity
and Congress’s power to determine under what conditions the funds of the United
States shall be obligated. See, e.g., Richmond, 496 U.S. at 428; Finn, 123 U.S.
at 232-33.
   We observe in this context that the Attorney General’s broad litigation and
settlement authority clearly permits her to compromise claims on the basis of her
good faith assessment of the litigation risk that a court might find that claimants

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satisfied the statute of limitations through equitable tolling and that their claims
merited relief. See The Attorney G eneral’s Role as C hief Litigator fo r the United
States, 6 Op. O.L.C. 47, 60 (1982). Her determination whether to compromise
the claims on the basis of the litigation risk may be guided by her judgment that
compromise, rather than litigation, would be in the best interests of the United
States or would otherwise promote the ends o f justice. Id. But her settlement
authority does not allow her to discard a statutory requirement and determine that,
on the basis of her own view of the equities, a claim should be paid, notwith­
standing its legal invalidity. Rather, the Attorney General’s obligation “ to admin­
ister and enforce the Constitution of the United States and the will of Congress
as expressed in the public laws,” requires that she enforce statutes of limitations
where they bar a plaintiffs claims. See id. at 62.

                                                            DAWN E. JOHNSEN
                                                    Acting Assistant Attorney General
                                                         Office o f Legal Counsel




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