Waiver of Statutes of Limitations in Connection with Claims Against the Department of Agriculture, 98-17

CourtOpinions of the Office of Legal Counsel of the Department of Justice
Citation22 Op. O.L.C. 127
Docket Number98-17
Decision Date18 June 1998
PartiesWaiver of Statutes of Limitations in Connection with Claims Against the Department of Agriculture

22 Op. O.L.C. 127

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

No. 98-17

United States Department of Justice

June 18, 1998


DAWN E. JOHNSEN Acting Assistant Attorney General Office of Legal Counsel.

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

The Supreme Court's decision in Irwin v. Department of Veterans Affairs made no alteration in the fundamental rules governing waivers of sovereign immunity in actions against the United States lrwin and the cases following it therefore provide no support for the novel conclusion that the executive branch has the discretion to dispense with a congressionally mandated statute of limitations in litigation or the compromise of claims. 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.

Enactment of legislation authorizing the payment of claims barred by the statute of limitations under the Equal Credit Opportunity Act is the necessary and constitutionally appropriate means of satisfying such claims.

MEMORANDUM OPINION FOR THE ASSOCIATE ATTORNEY GENERAL

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 of Limitations and Settlement of Equal Credit Opportunity Act Discrimination Claims Against the Department of 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 pending[2] and potential claims against the Department of Agriculture ("USDA") based upon alleged racial discrimination during the period of January 1983 to February 1997, in connection with the administration of 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 longstanding principle that, unless Congress provides otherwise, the statute of limitations [ 128] governing a cause of 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. Department of 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 sovereign 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 compromise 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. Mitchell, 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 Congress. See generally OPM v. Richmond, 496 U.S. 414 (1990); Finn v. United States, 123 U.S. 227 (1887). [ 129] 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 judgments 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 sanctioned" 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 otherwise 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 erroneous 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 Congress in effect could be transferred to the Executive." Id. The Court cautioned that estoppel would, in effect, empower executive officials to dispense with statutory 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 [ 130] 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 constitutes a condition on the waiver of sovereign immunity." Block v. North Dakota, 461 U.S. 273, 287 (1983); see United States v. Dalm, 494 U.S. 596, 608 (1990); Mottaz, 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 of 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...

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2 practice notes
  • Authority of the United States to Enter Settlements Limiting the Future Exercise of Executive Branch Discretion, 99-13
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • June 15, 1999
    ...has imposed upon its exercise. See Waiver of Statutes of Limitations in Connection with Claims Against the Department of Agriculture, 22 Op. O.L.C. 127, 137-38 (1998).[7] B. Congressional Limitations on the Settlement Power In addition to statutory limitations directly targeting the Attorne......
  • Proposed Settlement of Diamond v. Department of Health & Human Services, 98-31
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • December 4, 1998
    ...complainants entitled to relief. See Waiver of Statutes of Limitations in Connection with Claims Against the Department of Agriculture, 22 Op. O.L.C. 127, 139-40 (1998) ("USDA Opinion") (citing The Attorney General's Role as Chief Litigator for the United States, 6 Op. O.L.C. 47, 60 (1982))......
2 cases
  • Authority of the United States to Enter Settlements Limiting the Future Exercise of Executive Branch Discretion, 99-13
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • June 15, 1999
    ...has imposed upon its exercise. See Waiver of Statutes of Limitations in Connection with Claims Against the Department of Agriculture, 22 Op. O.L.C. 127, 137-38 (1998).[7] B. Congressional Limitations on the Settlement Power In addition to statutory limitations directly targeting the Attorne......
  • Proposed Settlement of Diamond v. Department of Health & Human Services, 98-31
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • December 4, 1998
    ...complainants entitled to relief. See Waiver of Statutes of Limitations in Connection with Claims Against the Department of Agriculture, 22 Op. O.L.C. 127, 139-40 (1998) ("USDA Opinion") (citing The Attorney General's Role as Chief Litigator for the United States, 6 Op. O.L.C. 47, 60 (1982))......

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