Should courts allow the federal government to ignore time deadlines for filing suit on the grounds that there’s a war on, even though it’s been 70 years since the end of the war on which such a delay was premised? On Tuesday the U.S. Supreme Court granted certiorari in a case raising that question, Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter. I wrote about the issue last year; an excerpt:
War is the health of the state,” wrote Randolph Bourne a century ago—from the special war taxes that can linger for a century, to the mohair subsidy program from Korean War days, to New York City’s wartime emergency rent controls, to the many incursions on civil liberties that don’t get rolled back afterward. War, it now turns out, can even give a boost to the lawyers who represent the federal government in civil litigation, magically transmuting losing cases into winners….
In 1942, not long after the Japanese attacked Pearl Harbor, Congress passed the Wartime Suspension of Limitations Act (WSLA), providing that the statute of limitations would be suspended (or “tolled”) on claims of defrauding the federal government until hostilities had ended. When the Japanese surrendered three years later, Congress left WSLA on the books, where nearly everyone forgot about it. …
A few years ago the U.S. Department of Justice decided that the old law entitled it to file various civil fraud lawsuits for which the ordinary statute of limitations had passed, because we were after all at war in Iraq and Afghanistan – even though the original statute applied on its face to criminal rather than civil cases, although the newer wars unlike World War II do not call for all-consuming national focus that might pre-empt the ordinary course of business, and although the subject matter of most of the cases has nothing whatever to do with national defense or war or Afghanistan or Iraq. A couple of appeals courts have agreed with DoJ’s excuse, which has emboldened the government to roll out the theory to many other cases. That leaves business lawyers to fret, as I wrote last year, about “when, if at all, they can safely advise clients that a potential dispute is too old to worry about. If truth is the first casualty of war, perhaps the fairness of dispute resolution is the next.”
The Supreme Court now offers them a ray of hope – and in a more sensible world Congress would do so as well, by agreeing to revisit WSLA.