Diary

The Little Case That Could

An overlooked case was heard before the United States Supreme Court yesterday that could have implications beyond that specific case.  At issue was the minute details of a law, jurisdiction, sovereign immunity and something called “equitable tolling.”  This case originated out of a car accident where the victim’s car hit a cable median divider on the highway that government officials knew to be deficient in crash tests.  The descendants of the victim’s estate sued since the government knew the divider to be defective.

In 1946, the Congress passed the Federal Tort Claims Act (FTCA) which eliminated sovereign immunity for alleged torts committed by the government and under certain conditions.  It also moved these claims against the federal government out of the district courts into the Federal Court of Claims.  Some of the law also lays out certain conditions for the waiver of sovereign immunity and subsequent amendments to the law attempt to steer dispute resolution to administrative government agencies before resorting to the courts.  Most importantly as concerns this case, it establishes a 2-year statute of limitations on making these sovereign immunity-exempted claims.

In this particular case, there was considerable foot-dragging by the agency responsible for testing the barrier and discovering that it was deficient.  In effect, this foot-dragging caused the claim to extend beyond the proscribed two year statute of limitations on filing a claim.  In fact, government agencies are particularly good at “running out the clock.”

In oral argument, the government contended that the law was black and white in this area and Congress intended for a strict adherence since they considered an equitable tolling option and rejected it.  How it works as the government perceives this case is that if John Doe dies on June 1, 2014 in a car accident as the result of crossing a highway median protected by a known deficient barrier, his descendants have until June 1, 2016 to bring a claim in federal court.  If that claim is filed on June 2, 2016 or after, there can be no claim- the FTCA precludes it.

The problem with this strict reading of the law is that it fails to take into account delays that may occur in determining the cause of the tort.  Government agencies are great at bureaucratic morass and they are not above withholding important information that may allow anyone to determine if a tort even exists.  In this case, there appeared to be a deliberate attempt by the government to simply run out the statutory clock set at two years.

However, there is a safeguard against this tactic- equitable tolling.  This prevents a statute of limitations from being imposed if the plaintiff could have or did not discover the injury after using due diligence.  In other words, a plaintiff who one year and 364 days after an injury suddenly decides they have a case yet did nothing up to that point cannot have a case equitably tolled since they showed a lack of due diligence.  But, if they make a claim one year later, hire a lawyer who then hires an investigator who discovers 30 months after the injury that government officials knew a median barrier was defective, it would demonstrate due diligence and, under most state laws, equitable tolling would be in effect.

The government’s argument is that even if due diligence is demonstrated, under federal law the case is still precluded since the FTCA is rigid even though Congress had 4 chances since 1946 to change it.  They further argued that state tort law was no guidance for how the federal government should enforce this law.

But if we think of accepting their view, it could radically change tort law as concerns the federal government.  Unless other Congressional action or laws directly addressed an issue, several classes of people who suffered harms from government actions or inaction would be denied their day in court if they had the misfortune of discovering the harm 2 years and one day too late.  I can think of patients at VA hospitals who suffered harms years ago and only recently we have discovered the reasons for waiting lists and the like.  Although legislation took care of this, one can think about Vietnam veterans exposed to Agent Orange whose effects were not demonstrated years after the fact.  One can think of a Tea Party group wronged by the IRS in 2010 only to find out in 2014 that there was a systematic design to targeting Tea Party groups for exacting scrutiny.  One can think of a worker at a nuclear testing site being exposed to dangerous doses of radiation only to find out years later the government knew of the dangers.  And the list goes on.

During oral argument, most of the questioning was directed at the government and their stern reading of the statute.  The plaintiffs in this case (who won in the lower courts) were questioned briefly by the Justices and then only for clarifying purposes.  It is rare indeed when one can pick up the gist of what Justices are thinking or how they are leaning in certain cases from oral argument questions, but when you have Kagan and Sotomayor following up on questions by Roberts and Scalia, the winds seem to be blowing against you.

One hopes that the Supreme Court does not accept and adopt the government’s rigid view in this case.  Yes, this sounds like a slick lawyer trying to make a buck off the government over a median barrier, but the results resonate beyond the particulars of this case.  If nothing else, think about those veterans and their families wronged by the Veteran’s Administration or Tea Party groups systematically targeted by the IRS who discovered the government’s role years after the fact and one starts to realize where this case could lead.