[00:00:00] Speaker 04:
Our next case is number 24, 2317, Blue Cross and Blue Shield of Kansas City versus United States.

[00:00:09] Speaker 04:
Okay, Ms.

[00:00:10] Speaker 04:
Berman.

[00:00:11] Speaker 00:
Good morning, Your Honors.

[00:00:12] Speaker 00:
Amanda Berman for the appellants in this case.

[00:00:15] Speaker 00:
I'm going to be taking all of the time this morning.

[00:00:17] Speaker 00:
Mr. Korda, counsel for the Carpenter's Appellants, is here in case there are questions about that distinct argument.

[00:00:22] Speaker 00:
It's not being waived.

[00:00:22] Speaker 00:
We're just focusing on the statute of limitations issue.

[00:00:26] Speaker 00:
Your Honor, the government adds that Sand and CalPERS inexorably add up to the conclusion that class action tolling can no longer be available for Tucker Act claims.

[00:00:35] Speaker 00:
That is not the case.

[00:00:37] Speaker 00:
Sand and CalPERS are both limited in important ways and neither address the question presented here.

[00:00:42] Speaker 00:
And I want to get right to Sand because I do think that's the critical point here.

[00:00:47] Speaker 00:
Sand addressed only one narrow question, whether the government can waive timeliness.

[00:00:51] Speaker 00:
The answer no was based entirely on stare decisis

[00:00:54] Speaker 00:
But that answer left plenty of room for this court to conclude that 2501 does not bar class action tolling.

[00:01:02] Speaker 00:
The court repeatedly states in sand that Tucker Act statutes of limitations are more absolute than other statutes of limitations.

[00:01:10] Speaker 00:
Not absolute, more absolute.

[00:01:12] Speaker 00:
That's very careful phrasing.

[00:01:14] Speaker 00:
The court repeatedly said that the Tucker Act statute of limitations

[00:01:18] Speaker 00:
is not subject to tolling based on certain equitable considerations.

[00:01:23] Speaker 00:
And it explained what that phrase meant.

[00:01:25] Speaker 00:
It pointed to what I'm quoting, sickness, surprise, accident, or other individualized circumstances, which American Pipe itself explained are different in nature from class action tolling.

[00:01:37] Speaker 00:
So why those carefully worded limitations?

[00:01:41] Speaker 00:
The government didn't answer that question in its brief, Your Honors.

[00:01:44] Speaker 00:
And the answer is the same as the decision itself.

[00:01:47] Speaker 00:
Stari decisis.

[00:01:49] Speaker 00:
John R. Sand was not written on a blank slate.

[00:01:52] Speaker 00:
The Supreme Court had already held back in 1967 in Honda versus Clark that class action tolling, which it described there as a traditional equitable principle.

[00:02:05] Speaker 00:
It's talking about class action tolling it

[00:02:08] Speaker 00:
It's describing it as an equitable principle.

[00:02:11] Speaker 00:
It said, and it found, that that is available even where a limitations principle waiving immunity has to be strictly construed.

[00:02:18] Speaker 03:
Because back then, all limitations principles- Do you agree with your friend on the other side that sand is not in tension with other Supreme Court cases?

[00:02:29] Speaker 00:
I don't entirely agree with that, Your Honor.

[00:02:31] Speaker 00:
I do think there's tension between sand and some of the more modern case law.

[00:02:35] Speaker 00:
that require a clear statement before you find that a statute of limitations is jurisdictional.

[00:02:41] Speaker 00:
Boeckler, for example, Harrow.

[00:02:43] Speaker 00:
But I recognize that this court is bound by sand, so it has to reconcile these two things itself.

[00:02:48] Speaker 00:
I think maybe the court comes to a different conclusion if it asks the question again.

[00:02:52] Speaker 00:
But the important thing here is that there is space left in sand itself for this court to conclude

[00:02:59] Speaker 00:
that it doesn't bar class action tolling for 2501.

[00:03:03] Speaker 00:
We have this older decision.

[00:03:05] Speaker 04:
It says it's jurisdictional.

[00:03:06] Speaker 04:
And as recently as 2022, in the Beckler case, the Supreme Court said jurisdictional statutes do not allow for equitable exceptions, period.

[00:03:19] Speaker 00:
Sure, Your Honor.

[00:03:19] Speaker 00:
So again, I want to go back to what Sand actually says.

[00:03:22] Speaker 00:
So Sand's description of the Tuckerx statute of limitations

[00:03:26] Speaker 00:
It describes it as jurisdictional, true.

[00:03:29] Speaker 00:
But the court says, and this is the only time it uses that word, that this is only a convenient shorthand for when a statute of limitations is trying to achieve broader system-wide goals.

[00:03:39] Speaker 00:
That's the only time it references that jurisdictional label.

[00:03:42] Speaker 00:
And I don't think that label controls the outcome here.

[00:03:45] Speaker 00:
We're basically dealing with a third category that hasn't been addressed by any of the applicable precedents.

[00:03:52] Speaker 00:
Council, in the case before, rightly noted that CalPERS only addresses the statute of repose.

[00:03:57] Speaker 00:
And you heard my friend on the other side explain that they're not arguing that 2501 is a statute of repose.

[00:04:03] Speaker 00:
We understand on the flip side that 2501 is not one of the non-jurisdictional statutes of limitation.

[00:04:09] Speaker 00:
So we are in a middle category here.

[00:04:12] Speaker 00:
But I think something that the court said in CalPERS is very important.

[00:04:16] Speaker 00:
It said, the statute of repose transforms the analysis in a hypothetical case with a different statutory scheme consisting of a single limitations period without that additional outer limit

[00:04:29] Speaker 00:
A court's equitable power under American pipe, in many cases, would authorize relief petitioners seeks.

[00:04:36] Speaker 00:
This is that hypothetical case, Your Honor.

[00:04:39] Speaker 00:
The government, it admits that 2501 isn't a statute of repose, but it's basically trying to make it into it.

[00:04:46] Speaker 00:
And we do think there is still, there has to be, based on how CalPERS describes the two different categories, statutes of repose are a very different thing.

[00:04:54] Speaker 00:
They have that outer limit.

[00:04:55] Speaker 00:
They're setting a firm outer bound.

[00:04:59] Speaker 00:
Statutes of limitations run from accrual.

[00:05:01] Speaker 00:
That's what this one does here.

[00:05:02] Speaker 00:
And 2501 itself, Your Honor, has confused.

[00:05:06] Speaker 02:
Can you just help me?

[00:05:07] Speaker 02:
I probably should know this.

[00:05:09] Speaker 02:
So a firm outer bound ordinarily in a statute of repose be a certain amount of time after the accrual, right?

[00:05:21] Speaker 02:
So what's the distinction?

[00:05:23] Speaker 00:
So as CalPERS explains, that a statute of repose doesn't run from accrual at all.

[00:05:29] Speaker 00:
It's like 60 days from when the government does acts.

[00:05:33] Speaker 00:
It's a time period based on when, usually when the defendant acts, it doesn't use that accrual language at all.

[00:05:40] Speaker 00:
And that's the critical difference that the court draws in CalPERS.

[00:05:43] Speaker 00:
And I think there can be no question that this is a statute of limitations.

[00:05:46] Speaker 02:
So a witness, for example, might not run from the time of injury.

[00:05:51] Speaker 02:
Accrual.

[00:05:51] Speaker 00:
Exactly, right.

[00:05:53] Speaker 00:
And if you look at this statute of limitations.

[00:05:55] Speaker 02:
The labels are not exactly thought clarifying.

[00:05:58] Speaker 02:
That's why I'm trying to get one level below the labels.

[00:06:02] Speaker 00:
Yes, I understand that, Your Honor.

[00:06:04] Speaker 00:
There's some things about this statute of limitations that I think make it even clearer that it cannot be a statute of repose.

[00:06:10] Speaker 00:
It has an exception even within it.

[00:06:13] Speaker 00:
So the Tucker Act statute of limitations says, court of federal claims has jurisdiction

[00:06:19] Speaker 00:
Every claim over which the court has jurisdiction shall be barred unless the petition thereon is filed within six years after the claim first accrues.

[00:06:26] Speaker 00:
And then it goes on to even carve out an exception from that.

[00:06:29] Speaker 00:
A petition on a claim of a person under legal disability or beyond the cease at the time the claim accrues may be filed within three years after the disability ceases.

[00:06:38] Speaker 00:
So we've got an exception built into the limitations provision itself.

[00:06:43] Speaker 00:
That's the opposite of a statute of proposed orders.

[00:06:45] Speaker 00:
It's very different from what was the Securities Act provision at issue in CalPERS, for example.

[00:06:51] Speaker 00:
In no event shall an action be brought more than three years after the security was modified often.

[00:06:56] Speaker 04:
But you're not dealing with the language that I read to you from the Eason-Bohler case, which is pretty explicit.

[00:07:06] Speaker 04:
jurisdictional statutes do not allow for equitable exceptions.

[00:07:11] Speaker 04:
Sure, Your Honor, but I think we... If that is correct, you lose, right?

[00:07:16] Speaker 00:
I disagree, Your Honor.

[00:07:17] Speaker 04:
Why?

[00:07:17] Speaker 00:
Because I think we have to go back to what Sand actually said.

[00:07:21] Speaker 00:
Sam said they're not subject to tolling... You're not accepting my hypothetical.

[00:07:26] Speaker 04:
If that rule from Bollard

[00:07:29] Speaker 04:
is applicable here, you lose.

[00:07:33] Speaker 04:
Because it doesn't depend on whether it's a statute of repose.

[00:07:36] Speaker 04:
It says jurisdictional statutes are not subject to equitable exceptions.

[00:07:41] Speaker 04:
And JR Sand and Gravel says 2501 is a jurisdictional statute, right?

[00:07:46] Speaker 00:
Yes, Your Honor.

[00:07:47] Speaker 00:
My answer to that is that Bokehler was just, that phrase is dicta and it's shorthand.

[00:07:53] Speaker 00:
It doesn't capture the certain equitable considerations that Sand actually says.

[00:07:58] Speaker 00:
It doesn't capture the more absolute, which is how Sand actually describes 2501.

[00:08:03] Speaker 00:
And I think it's notable that Sand only uses the phrase jurisdictional in passing and says it's convenient shorthand.

[00:08:09] Speaker 00:
The holding of SAND was not 2501 is jurisdictional.

[00:08:13] Speaker 00:
It was that it's more absolute, it's subject to only certain equitable considerations, and those don't include the ability to waive timeliness.

[00:08:22] Speaker 00:
So I think we have to go back to what SAND itself said.

[00:08:25] Speaker 00:
And the reason, which is there was this rule already established in Honda that class action tolling is available.

[00:08:34] Speaker 00:
in claims brought against the government under a limitations provision that at that time was thought to be jurisdictional.

[00:08:40] Speaker 00:
That provision at the time was considered to be also more absolute and jurisdictional.

[00:08:46] Speaker 00:
So I think we have to reconcile this history of cases and see does that leave space for this court to conclude that 2501 is still subject to class action tolling.

[00:08:56] Speaker 00:
And your honor, I want to emphasize that it's really problematic if this court doesn't so conclude.

[00:09:01] Speaker 00:
As this court rightly recognized and right, that would make it virtually impossible for a lot of members of the class to timely opt in.

[00:09:09] Speaker 00:
I think it would break Court of Federal Claims Rule 23, Your Honor, because it puts a lot of pressure on judges to timely certify.

[00:09:18] Speaker 00:
But even if they do, a wise litigant is going to have to file their own claim in case the class is later decertified on appeal.

[00:09:26] Speaker 00:
And I want to point the court to, you know, I found recently there's a case out of the Ninth Circuit and one out of the Eighth Circuit, both against Union Pacific Railroad.

[00:09:34] Speaker 00:
They're called DeGere and DeFries, where a class was decertified on appeal.

[00:09:42] Speaker 00:
And in both instances, the court noted that American pipe tolling was the thing that was protecting the putative class member who had lost the class status from being able to still bring their claim.

[00:09:52] Speaker 00:
So it's really quite a can of worms the court would be opening to hold that class action tolling

[00:09:56] Speaker 00:
is not available at all here, Your Honor.

[00:10:03] Speaker 00:
Your Honor, just a few more points.

[00:10:08] Speaker 00:
CalPERS itself distinguishes between traditional equitable tolling and American pipe tolling, and there is an important distinction.

[00:10:16] Speaker 00:
The only time the court actually uses the phrase doctrine of equitable tolling in that case in CalPERS is when it's describing the classic example

[00:10:24] Speaker 00:
which it describes as races on disability, sickness, or other circumstances that prevent an individual plaintiff from timely filing.

[00:10:32] Speaker 00:
American Pipe tolling is not that.

[00:10:34] Speaker 00:
Yes, the court describes it as sounding inequity, but as American Pipe explains, it's applying mechanically once a class action is filed to protect a congressional class action mechanism.

[00:10:46] Speaker 00:
It is protecting this broader class action mechanism, which does come from congressional authorization

[00:10:54] Speaker 00:
including even the congressional authority given to the Court of Federal Claims to implement its own rules to effectuate that congressional mechanism.

[00:11:01] Speaker 02:
Is that the only congressional authorization, or is there something in what Congress has said specifically about class actions?

[00:11:14] Speaker 02:
I thought it was just the 2071 authorization of local courts, including the claims court, to make their own rules.

[00:11:23] Speaker 00:
That's true, Your Honor.

[00:11:24] Speaker 00:
So I would point the court to the fact that as it rightly said and right, even while this isn't statutory totally, at the same time, Rule 23 of the Court of Federal Claims is meant to parallel the federal civil procedure 23.

[00:11:40] Speaker 00:
That itself does have a statutory status.

[00:11:45] Speaker 02:
What do you mean by a statutory status?

[00:11:47] Speaker 02:
It's authorized by the statute, right?

[00:11:50] Speaker 02:
And the Supreme Court promulgated it.

[00:11:53] Speaker 00:
Yes, Your Honor, my understanding is that the federal rules of civil procedure are adopted into statute.

[00:12:02] Speaker 00:
That's the mechanism set out.

[00:12:03] Speaker 00:
And there's a difference here.

[00:12:05] Speaker 02:
In any event, I thought what CalPERS was saying was that there's kind of

[00:12:10] Speaker 02:
The rules are what the rules are, but the rules don't say anything about tolling.

[00:12:14] Speaker 02:
Tolling has to come from somewhere else.

[00:12:17] Speaker 02:
And that can only be- That's right, Your Honor.

[00:12:19] Speaker 00:
And the tolling does come from something else.

[00:12:22] Speaker 00:
But I think the important point is that HELPA recognizes that class action tolling, it's equitable in nature, but it's not coming from that judge judicial ability to promote justice in individual cases.

[00:12:34] Speaker 00:
It's implementing

[00:12:36] Speaker 00:
a federal class action mechanism that is available across the courts.

[00:12:40] Speaker 00:
And this court also rightly pointed out back in Bright that if you don't have that in the Court of Federal Claims, that means that a case brought under the Tucker Act and the Little Tucker Act, same claims, same limitations language, are subject to different rules.

[00:12:53] Speaker 00:
Class action tolling is available for one and not the other.

[00:12:56] Speaker 00:
And all those things that this court said in Bright are still true.

[00:12:59] Speaker 00:
And we think that Sand and CalPERS together, because of their important limitations,

[00:13:04] Speaker 00:
leave enough space for this court to reaffirm the conclusion in bright, but with different reasoning, Your Honor.

[00:13:12] Speaker 00:
And I will reserve my last two minutes for rebuttal unless this court has further questions.

[00:13:16] Speaker 04:
OK.

[00:13:16] Speaker 04:
Thank you.

[00:13:18] Speaker 04:
Mr. Caron.

[00:13:27] Speaker 01:
Good morning again, Your Honors.

[00:13:31] Speaker 01:
I understand the thrust of my friend's argument to be an attempt to create new categories that don't exist in the Supreme Court's case law and in this court's case law.

[00:13:40] Speaker 01:
The first is a distinction among types of jurisdictional statutes of limitations.

[00:13:45] Speaker 01:
My friend focuses quite a bit on John R. Sand and elevates the way the Supreme Court or that particular opinion describes jurisdictional statutes of limitations in a way that's divorced respectfully from all of the other cases.

[00:13:58] Speaker 01:
As Judge Dyke indicated the premise of your question, we have cases like Beckler, we have cases like Wong, we have cases from this court saying one attribute, whatever all of their attributes may be, one attribute of a jurisdictional statute of limitations is that it does not admit of equitable exceptions.

[00:14:13] Speaker 01:
The second sort of new category is a new type of equitable exception.

[00:14:17] Speaker 01:
Again, that category doesn't exist.

[00:14:20] Speaker 01:
I think even if one were convinced that promoting the principles behind a statutory rule were different from promoting individualized considerations of justice, the rule in both cases derives from the court's sense of fairness in how things should work, not from a statute.

[00:14:37] Speaker 01:
That is the critical distinction in CalPERS.

[00:14:39] Speaker 01:
That is the reason that American pipe tolling

[00:14:41] Speaker 01:
is equitable in nature, not statutory, because it doesn't derive from the text of any rule.

[00:14:46] Speaker 01:
It derives from purposes and, you know, the considerations of administrability, fairness, all of these other things that sound classically inequity.

[00:14:56] Speaker 01:
I would just, as a final note, add that BRITE itself accepted John R. Sands holding that statutes of limitations, excuse me, that Section 2501 is jurisdictional, and that it does not admit of equitable exceptions, and so

[00:15:07] Speaker 01:
with his court to look.

[00:15:08] Speaker 01:
I think there are many sources of the rules I've described, but Bright itself sort of accepts these premises, which I think are dispositive in this case.

[00:15:16] Speaker 01:
Unless there are any other questions.

[00:15:18] Speaker 01:
We'd ask that you affirm.

[00:15:19] Speaker 01:
Thank you.

[00:15:29] Speaker 00:
Your Honors, no court has held

[00:15:31] Speaker 00:
that a jurisdictional statute of limitations is subject to no equitable exceptions.

[00:15:38] Speaker 00:
All of the cases that my friend referenced, that Judge Dyke referenced earlier, they weren't addressing 2501 or a quote unquote jurisdictional statute of limitations, whatever that means.

[00:15:47] Speaker 00:
They were addressing ones that they found were not.

[00:15:49] Speaker 00:
jurisdictional that could be subject to any type of equitable exception.

[00:15:54] Speaker 00:
One court, the Supreme Court, has held back in Honda versus Clark that class action tolling is available even for a strict statute of limitations, which at the time the provision at issue there was viewed as a strict and jurisdictional.

[00:16:08] Speaker 00:
That precedent still stands.

[00:16:10] Speaker 00:
It's written by Harlan the grandson, Justice Harlan the grandson,

[00:16:14] Speaker 00:
of who was responding, I think, in part to things his grandfather said in cases like Kendall back in the 1800s addressing statutes of limitations that had to be strictly construed and finding that individualized equitable tolling, disability, et cetera, was not available.

[00:16:32] Speaker 00:
He was responding to that.

[00:16:34] Speaker 00:
And he held that class action tolling could be applied despite the fact that the statute there was jurisdictional in nature.

[00:16:40] Speaker 00:
This court should just hew to that precedent, which still stands.

[00:16:43] Speaker 00:
And it also recognizes the space that sand leaves.

[00:16:46] Speaker 00:
It doesn't address the question presented here.

[00:16:48] Speaker 00:
This court can do so.

[00:16:50] Speaker 00:
Thank you, Your Honor.

[00:16:51] Speaker 04:
OK.

[00:16:51] Speaker 04:
Thank you.

[00:16:52] Speaker 04:
Thank both counsel.

[00:16:53] Speaker 04:
The case is submitted.