ARGUMENT ANALYSIS

A quiet bench on the Quiet Title Act: Justices hold muted debate on statute of limitations

Wednesday’s argument in Wilkins v. United States was a quiet one, with several of the justices saying so little that it is difficult to discern what they are thinking. Those who spoke extensively, however, seem ready to reject the government’s argument that the statute of limitations at issue here is a strict jurisdictional rule, as opposed to a “mere” claims-processing rule, which could be waived in an appropriate case.

The dispute involves the Forest Service’s decision to permit general public use of a road near the Bitterroot National Forest in Montana. Larry Wilkins and his neighbor Gene Stanton (who live near the road) filed suit under the federal Quiet Title Act, arguing that general public use exceeds the terms of the easement that authorizes the road. Wilkins and the government fought in the lower courts over whether the suit, filed many years after the general public use began, was timely. The issue that came to the Supreme Court from that litigation is the one I mentioned above: whether the 12-year statute of limitations is a strict jurisdictional bar, which plainly would put Wilkins out of court, or instead a claims-processing rule, which would leave some opportunity for the trial court to excuse the tardy filing.

At the outset, it is entirely possible that the suit would be untimely under either reading of the statute, a possibility explored early in the argument by Chief Justice John Roberts and Justice Sonia Sotomayor. Roberts, for example, commented that “whether you’re right … about jurisdiction or not, you still lose, right?” Similarly, Sotomayor told Jeffrey McCoy (counsel for Wilkins): “I don’t know how you win” on the argument about excusing the late filing. So there is at least a possibility that some of the justices will think the case does not warrant decision.

But the discussion on the jurisdictional status of the deadline was more one-sided. For one thing, no justice seemed to have any doubt that the case closely resembles last term’s unanimous decision last in Boechler v. Commissioner. For many years the court loosely referred to problems as “jurisdictional” without intending the strict consequences that follow under the modern conception of judicial authority. Recent decisions (like Boechler) read statutes quite carefully and treat filing deadlines as jurisdictional only if the text of the statute pretty clearly compels that reading. None of the justices seem to think the Quiet Title Act meets that standard. So the only argument that the government has is that the court’s old cases under the Quiet Title Act can be read as including a definitive conclusion that the time deadline in the Quiet Title Act is jurisdictional.

For one justice – Ketanji Brown Jackson – those old cases are totally irrelevant. So, she pointedly asked McCoy “what difference does it make that way in the past we had a different way of figuring this out?” For her, what makes the most sense is “just saying today we have a test … and we’re going to apply the test we ha[ve] today, and to the extent that it’s different [from] what we said in the past, we just chalk it up to the … new rule of decision.” She would ignore anything in the old cases and apply the modern rule under which the deadline in the Quiet Title Act is not jurisdictional.

Justice Elena Kagan was the most engaged with the government’s argument that the old cases already have decided that the limit at issue here is jurisdictional. And she made it clear that she finds the argument unpersuasive. As she put it, the justices clearly “have a test” for deciding whether it matters that older decisions happened to use the word “jurisdictional.” The question as she sees it is whether “we’ve really addressed th[at the statute is jurisdictional], decided the issue,” because in that circumstance, “then that controls. It has stare decisis effect.” On the other hand, “if we’ve just kind of used the word without deciding the issue, then … that doesn’t have stare decisis effect and, to the contrary, we disclaim any understanding that the thing was meant to be jurisdictional in the pure sense.”

Kagan explained that she’d gone back and read the two cases on which the government relies and that for her they fell far short of the required clarity: “I don’t see any of that in either of these two cases.” She agreed that one opinion mentions the word “jurisdictional” early in the opinion, but the opinion mentions the term only “in the [statement of] facts and never comes back to it. It’s completely irrelevant to the questions that the body of the opinion decides.” At the end of a lengthy interchange, she concluded that the government’s cases offer “exactly the kind of ‘drive-by’ use of jurisdiction that we’ve talked about many times before.”

Sotomayor’s comments indicate that she came away from the discussion with the same perspective:

Maybe I’m too simplistic. I think I might be. But in neither of the two cases [on which the government relies] was there an issue of equitable tolling, equitable concealment, fraudulent estoppel [for which jurisdictional status would matter]. [Rather, i]t was, does the six-year statute apply or does the 12-year statute apply? So I have an almost impossible time understanding that the court was … ruling that this was subject matter jurisdiction. … Why would we try to give stare decisis to issues that weren’t identified by the court?

Although Justice Neil Gorsuch’s questions were not as dismissive, he seemed to follow in the same line of thinking.

In the end, the problem the government faces is finding a majority of justices willing to walk away from a unanimous opinion from Justice Amy Coney Barrett that rejected a similar argument by the government less than a year ago. The discussion at the argument offers no reason to think a majority will take that approach. This is a strong candidate for a unanimous opinion in the early months of 2023.