STATUTE OF LIMITATIONS AND SETTLEMENT OF EQUAL CREDIT
The Attorney General may not waive the statute of limitations in the litigation or compromise ofpending claims against the United States.
Absent a specific provision to the contrary, a statute of limitations on civil actions also shouldapply to administrative settlements of claims arising under that statute pursuant to 31 U.S.C. §3702.
31 U.S.C. §3702 does not authorize USDA to pay compensatory damages in an administrativesettlement of an ECOA claim if ECOA's two year statute of limitations has run.
Filing an administrative claim with USDA does not toll ECOA's statute of limitations.
ECOA's statute of limitations is, in appropriate circ*mstances, subject to the doctrines ofequitable tolling and equitable estoppel.
January 29, 1998
MEMORANDUM FOR RAYMOND C. FISHER
This memorandum responds to your request for advice on whether the statute oflimitations in the Equal Credit Opportunity Act,15 U.S.C. §§1691-1691f (1994) ("ECOA"),applies to administrative settlements of ECOA claims. You also have asked us whether thegovernment may waive the statute of limitations, and under what circ*mstances the statute oflimitations might be tolled.
We have concluded that ECOA's statute of limitations does apply to administrativesettlements of ECOA claims and that the statute of limitations cannot be waived by the UnitedStates, either in litigation or in the administrative process. As for tolling of the statute oflimitations, we have concluded that filing an administrative complaint does not toll thelimitations period for a civil action. While ECOA is, in relevant circ*mstances, subject to thedoctrines of equitable tolling and equitable estoppel, courts infrequently apply these doctrinesagainst the United States.
I. Background
In relevant part, ECOA prohibits any creditor from discriminating against any applicant,with respect to any aspect of a credit transaction, on the basis of race, color, religion, nationalorigin, sex or marital status. 15 U.S.C. §1691(a) (1994). A "creditor" under the act includes anyperson who regularly extends, renews, or continues credit. Id. §1691a(e) (1994). A "person" is"a natural person, a corporation, government or governmental subdivision or agency, trust, estate,partnership, cooperative, or association." Id. §1691a(f).
Administrative enforcement of ECOA is divided among several federal agencies, each ofwhich has authority over certain categories of creditors. Id. §1691c(a) (1994 & Supp. I 1995). Enforcement responsibility not specifically committed to another federal agency is vested in theFederal Trade Commission ("FTC"), which is to use its powers under the Federal TradeCommission Act, 15 U.S.C.A. §§41-58 (West 1997), to enforce ECOA's requirements. Id.§1691c(c). The Department of Agriculture's ("USDA's") farm credit programs fall under theauthority of the FTC. The FTC has authorized USDA to process ECOA claims arising fromUSDA programs.(1)
Section 1691e of ECOA also provides for a private right of action against creditors whoviolate the discrimination prohibitions of the act. Under subsection (a), all creditors are liable forcompensatory damages: "[a]ny creditor who fails to comply with any requirement imposedunder this subchapter shall be liable to the aggrieved applicant for any actual damages sustainedby such applicant acting either in an individual capacity or as a member of a class." Id.§1691e(a) (1994). Subsection (d) authorizes the imposition of attorney's fees and costs in asuccessful action. Id. §1691e(d). No private action may be brought later than two years after theoccurrence of the violation, unless the Attorney General or the agency with administrativeenforcement responsibility commences an enforcement proceeding within two years. In thatcase, an applicant may bring a civil action within one year of the commencement of theenforcement proceeding. Id. §1691e(f).
In a 1994 opinion, this Office opined that ECOA applies to federal agencies and that itwaives the sovereign immunity of the United States for monetary relief. Accordingly, weadvised USDA that the Secretary could provide monetary relief, attorney's fees, and costs inadministrative settlements of ECOA discrimination claims if a court could award such relief inan action by an aggrieved person. Memorandum for James S. Gilliland, General Counsel, U.S.Department of Agriculture, from Walter Dellinger, Assistant Attorney General, Office of LegalCounsel (Apr. 18, 1994) ("USDA Opinion"). USDA accepts and processes ECOA complaintspursuant to its process for investigating any discrimination complaint in its programs, which isset forth at 7 C.F.R. §15.52 (1997). Those regulations permit any person to file a writtencomplaint regarding discrimination in any program or facility directly administered by USDA. Id.
In October of 1997, fourteen plaintiffs filed a class action suit against USDA alleging thatUSDA had discriminated against them, and other similarly situated individuals, on the basis oftheir race in the administration of farm loans and credit programs during the period of January1983 to January 1997. Pigford v. Glickman, Civ. No. 1:97CV01978 (D.D.C.). The court granteda stay of that action to allow the plaintiffs and the United States to explore options for settling theclaims of the named plaintiffs and the putative class members. As part of the Department'sconsideration of settlement options, the Office of the Associate Attorney General asked thisOffice for oral advice on the application of ECOA's statute of limitations to claims in litigationand to claims in USDA's administrative settlement process. Subsequently, you asked for aformal opinion on the following questions: 1) can the United States waive the statute oflimitations in an ECOA civil action; 2) does ECOA's statute of limitations apply to theadministrative settlement of ECOA claims by USDA; 3) does the filing of an administrativecomplaint with USDA toll the statute of limitations; and 4) would the doctrines of equitabletolling or equitable estoppel apply to these cases?
Our analysis proceeds as follows. In Part II, we conclude that the Attorney General maynot waive the statute of limitations in the litigation or compromise of these claims. In Part III, weconclude that because USDA may make administrative settlements of ECOA claims that includecompensatory damages only where a court could award such relief, USDA may not waive thestatute of limitations in administrative settlements. Part III also concludes that §3702 of title 31does not provide an independent basis of authority for the payment of administrative claims filedafter expiration of the ECOA statute of limitations. Moreover, even where an administrativeclaim is filed within the ECOA statute of limitations, USDA may not make payment on the claimwithout relevant appropriations authority. We understand that USDA's appropriation authority,however, would provide no basis for paying compensatory damages under ECOA where thestatute of limitations has expired and no timely claim was asserted in court. Part IV examines thecirc*mstances in which ECOA's statute of limitations might be tolled. That part concludes thatfiling an administrative claim does not toll the statute of limitations on a civil action. It thenconcludes that although the doctrines of equitable tolling and equitable estoppel would apply toECOA in appropriate circ*mstances, courts infrequently apply these doctrines against the UnitedStates.
II. Waiver in Litigation
Ordinarily, a civil action for compensatory damages under ECOA must be filed no laterthan two years from the date of occurrence of the violation. 15 U.S.C. §1691e(f). However,when any agency responsible for administrative enforcement under §1691c of ECOAcommences an enforcement proceeding within two years from the date of the occurrence of theviolation, or when the Attorney General commences a civil action under this section within twoyears from the date of the occurrence of the violation, "any applicant who has been a victim ofthe discrimination which is the subject of such proceeding or civil action may bring an actionunder this section not later than one year after the commencement of that proceeding or action." 15 U.S.C. §1691e(f).(2)
The federal courts and this Office have observed that the statute of limitations for a causeof action against the United States constitutes a term of consent to the waiver of sovereignimmunity. See Memorandum for James W. Moorman, Assistant Attorney General, Land &Natural Resources Division, from John M. Harmon, Assistant Attorney General, Office of LegalCounsel, Re: Pueblo of Taos v. Andrus at 2 n.1 (Mar. 30, 1979) (citing cases). The doctrine ofsovereign immunity precludes suit against the United States without the consent of Congress, andthe terms of its consent define the extent of a court's jurisdiction. See United States v. Mottaz,476 U.S. 834, 841 (1986). In particular, "`[w]hen waiver legislation contains a statute oflimitations, the limitations provision constitutes a condition on the waiver of sovereignimmunity.'" Id. (quoting Block v. North Dakota, 461 U.S. 273, 287 (1983)). Because the termsof consent are established by Congress, see id., modifying the terms of consent requireslegislative action. See, e.g., United States v. Garbutt Oil Co., 302 U.S. 528, 534-35 (1938)(discussing Tucker v. Alexander, 275 U.S. 228 (1927) ("no officer of the government has powerto waive the statute of limitations")); Overhauser v. United States, 45 F.3d 1085, 1088 (7th Cir.1995) (government officers have no general power to waive statutes of limitations in tax casesand are limited to specific statutory authorizations for such waivers). Thus the Attorney Generalcannot waive the statute of limitations in the litigation or in the compromise of these pendingclaims.(3)
III. Administrative Settlements
A. Authority for Administrative Settlements
ECOA does not expressly address the administrative settlement of ECOA claims againstfederal agency creditors. This Office has previously opined that the Secretary of Agriculture mayaward monetary relief, attorney's fees, and costs in administrative settlements of ECOAdiscrimination claims if a court could award such relief in an action by an aggrieved person. USDA Opinion at 2. That opinion considered the applicability of 31 U.S.C. §1301(a) (1994),which states that federal agencies may spend funds only on the objects for which they wereappropriated. USDA Opinion at 2. "Consistent with this requirement, appropriations lawprovides that agencies have authority to provide for monetary relief in a voluntary settlement of adiscrimination claim only if the agency would be subject to such relief in a court action regardingsuch discrimination brought by the aggrieved person." Id. (footnote omitted). The ComptrollerGeneral has applied the same principle in evaluating agency authority to settle claims under TitleVII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e - 2000e-17 (1994 & Supp. I 1995), andthe Age Discrimination in Employment Act of 1967, 29 U.S.C.A. §§621-634 (West 1985 &Supp. 1997) ("ADEA"). The Comptroller General ruled that an agency may provide back pay orattorney's fees only where such monetary relief would be available in a court proceeding on theclaim. See USDA Opinion at 2 (discussing 62 Comp. Gen. 239 (1983); 64 Comp. Gen. 349(1985)). Because ECOA waives sovereign immunity with respect to compensatory damages, id.at 17-19, agencies may provide compensatory damages in their voluntary settlement ofdiscrimination claims if the conduct complained of violates ECOA. See id. at 20.
The Credit Practices Bureau of the FTC also has advised USDA that it may investigateand provide appropriate remedies for ECOA claims filed against USDA. The FTC authorizedUSDA to investigate ECOA complaints regarding USDA lending programs in a letter ofunderstanding, see FTC Letter, and told us that it orally advised USDA that USDA may provideappropriate remedies for valid claims prior to litigation.
B. Waiver of Statute of Limitations
The same prohibition that applies to waiving the statute of limitations in litigation wouldapply to waiving the statue in any pre-litigation, administrative settlement of an ECOA claim atUSDA. As our 1994 opinion explained, USDA's authority to use existing appropriations to payadministrative ECOA claims depends upon the existence of a viable civil action that could bebrought by the aggrieved claimant. See USDA Opinion at 1-2. A court can award damagesagainst the United States only where there has been a waiver of sovereign immunity. ECOA'swaiver of sovereign immunity is valid only where a claim is filed before the expiration of thelimitations period. Thus, if the statute of limitations has expired, a court cannot award damageson that claim, and the agency cannot rely on the existence of a viable ECOA claim as a basis forexpending appropriated funds to pay compensatory damages as part of an administrativesettlement.
C. Applicability of 31 U.S.C. §3702
You have asked us to consider how the provisions of 31 U.S.C. §3702, which governsthe settlement of claims against the United States, apply to the settlement of ECOA claims. Priorto 1996, §3702 authorized the General Accounting Office ("GAO") to settle all claims againstthe United States "except as provided in ... another law." 31 U.S.C. §3702 (1994).(4) A 1996amendment to § 3702 transferred the settlement authority to various executive agencies,including the Office of Personnel Management, the Secretary of Defense, and the Office ofManagement and Budget. See 31 U.S.C.A. §3702(a) (West 1983 & Supp. 1997).
The term "settle" in § 3702 does not mean "compromise," but rather refers to anadministrative determination of the amount of money (if any) due a claimant. See III Principlesof Federal Appropriations Law 12-9 (2d. ed. 1992) (citing Illinois Surety Co. v. United States exrel. Peeler, 240 U.S. 214, 219-221 (1916)); Alabama v. Bowsher, 734 F. Supp. 525, 530 n.4(D.D.C. 1990). Claims presented for settlement under §3702 must be received within six yearsfrom the date on which the claim arose, "except as provided in this chapter or another law." 31U.S.C. §3702(b)(1)(A).
You have asked us to consider in particular whether §3702(b) would allow USDA toinclude compensatory damages in settlements of ECOA claims filed within six years of theaccrual of the claim, even if ECOA's statute of limitations had run and a court could no longeraward such damages. We have concluded, first, that §3702 would apply only to those ECOAclaims filed with USDA within the two-year statute of limitations in ECOA. Second, we haveconcluded that §3702 provides no authority to pay a claim if funds have not otherwise beenappropriated. USDA has informed us that it does not have appropriations authority to paycompensatory damages other than the authority that exists when a court could award suchdamages in a civil action. Thus, even if the appropriate statute of limitations for anadministrative claim under §3702 were six years instead of two years, USDA could not paycompensatory damages as part of an administrative settlement if the two-year statute oflimitations had run.
1. Length of Limitations Period
We start with the determination of the appropriate time limitation for ECOA claims. While the GAO has not issued any opinions regarding the settlement of ECOA claims, it hasconsidered the interaction of §3702(b) and other limitations periods on civil causes of action.(5) For many years, GAO's position was that statutes setting limitations on "causes of action" or"civil actions" applied only to judicial proceedings, and therefore claims filed with an agencyrather than a court were subject to the six-year limitation of §3702(b). See, e.g., 51 Comp. Gen.20, 22 (1971) (GAO will settle claims for communications services filed within six yearsnotwithstanding shorter limitation on "actions at law" in the Interstate Commerce Act and theCommunications Act); 57 Comp. Gen. 441, 443 (1978) (claims for overtime compensation maybe filed up to six years after the claim first accrued notwithstanding the two or three-yearlimitation period in the Fair Labor Standards Act).
In a 1994 decision, GAO reconsidered and reversed this position. 73 Comp. Gen. 157(1994). The relevant decision arose under the Fair Labor Standards Act, 29 U.S.C. §§201-219(1994) ("FLSA"). A claim for unpaid minimum wages, unpaid overtime compensation andliquidated damages under FLSA must be filed within two years of the time it first accrues, orthree years if it arises out of a willful violation. 29 U.S.C. §255 (1994). The claimant soughtovertime compensation for the six-year period that preceded his claim. The Air Force, theclaimant's employer, and the Office of Personnel Management ("OPM") argued that FLSA's twoor three-year limitations period, rather than the six-year period in §3702(b), should govern theclaim. 73 Comp. Gen. at 160. In ruling against the claimant, GAO cited cases holding that whena statute creates a right that did not exist at common law and limits the time to enforce it, thelapse of time not only bars the remedy but extinguishes the underlying rights and liabilities of theparties. See William Danzer Co. v. Gulf R.R., 268 U.S. 633, 635-36 (1925); Kalmich v. Bruno,553 F.2d 549, 553 (7th Cir. 1977) (cited in 73 Comp. Gen. at 161).(6) "Accordingly, a timelimitation imposed on a statutorily created judicial cause of action will apply to administrativeproceedings to adjudicate the same claims absent a specific provision to the contrary." 73 Comp.Gen. at 161. Because FLSA contained no provision indicating that a different limitations periodshould apply to administrative claims, GAO determined that the two or three-year statute oflimitations in FLSA applies to the administrative settlement of FLSA claims under §3702. Id.
We need not resolve here whether GAO's reversal of its long-standing position waswarranted because we believe that, in light of subsequent congressional action, GAO's 1994interpretation should now govern.(7) Following the GAO decision announcing that it would applythe two or three-year limitations period to FLSA claims, Congress enacted a grandfatherprovision to except those FLSA claimants who might have relied on the earlier GAOinterpretation, but Congress did not amend the statute to alter the prospective application of thetwo or three-year limitations period. Under § 640 of the 1995 Treasury, Postal Service andGeneral Government Appropriations Act, Congress directed GAO to apply a six-year statute oflimitations to all FLSA claims filed before June 30, 1994; significantly, it did not alter the effectof the GAO decision as to claims filed after that date. See Pub. L. No. 103-329, § 640, 108 Stat.2382, 2432 (1994).
In addition, Congress revisited the settlement of claims under § 3702 on three otheroccasions. In 1995, it amended §640 by excluding from its coverage claims in which anemployee received any compensation for overtime hours worked during the period covered bythe claim, or claims for compensation for time spent commuting between an employee'sresidence and duty station. Treasury, Postal Service, and General Government AppropriationsAct, 1996, Pub. L. No. 104-52, 109 Stat. 468, 468-69 (1995). Congress also transferred GAO'sfunctions under several statutes, including §3702, to the Office of Management and Budget,contingent upon the transfer of such personnel, budget authority, records and property as deemednecessary. See Legislative Branch Appropriations Act, 1996, Pub. L. No. 104-53, §211, 109Stat. 514, 535 (1995). Finally, in 1996, Congress amended the text of §3702 itself, transferringthe responsibility for settling claims to various executive branch agencies, including theDepartment of Defense and OPM. General Accounting Office Act of 1996, Pub. L. No. 104-316,§202(n), 110 Stat. 3826, 3843-44 (1996). In none of these amendments did Congress alter theGAO's interpretation of the statute of limitations provision for FLSA claims filed after June 30,1994.
Thus, in interpreting §3702, we must consider that Congress has made specificadjustments to the statutory scheme in light of the GAO interpretation and left the agency'sinterpretation undisturbed. See generally CFTC v. Schor, 478 U.S. 833, 846 (1986). Thelegislative record is not limited to instances in which Congress revisited the statute and abstainedfrom overturning the administrative construction. Although such action provides relevant, albeituncertain, evidence of legislative intent, see generally United States v. Wells, 117 S.Ct. 921, 929(1997) (finding legislative silence inconclusive because Congress has not spoken directly to theinterpretive issue in question), here, Congress has done more than merely "kept its silence." Schor, 478 U.S. at 846. Rather, Congress has spoken directly to the interpretive issue in questionby enacting legislation specifically related and responsive to the GAO interpretation. See id.;Bell v. New Jersey, 461 U.S. 773, 785 n.12 (1983); Red Lion Broad. Co. v. FCC, 395 U.S. 367,381-82 (1969); Zemel v. Rusk, 381 U.S. 1, 11 (1965); cf. Wells, 117 S.Ct. at 929. While at onetime, §3702 may have been reasonably subject to conflicting interpretations, the statute cannotbe divorced from the subsequent -- and directly relevant -- congressional action, which nowforms a strong basis of support for the GAO interpretation.(8) Accordingly, absent a specific provision to the contrary, ECOA's limitation on civil actions also should apply to administrativesettlements of ECOA claims.
As noted earlier, ECOA does not expressly address administrative claims against federalagency creditors, and its limitation provision does not specifically except administrative claims. Section 1691e establishes civil liability for any actual damages sustained by an applicant. 15U.S.C. §1691e(a). That section then provides that "[a]ny action under [§1691e] may be broughtin the appropriate United States district court without regard to the amount in controversy, or inany other court of competent jurisdiction." Id. §1691e(f).
The language of ECOA's limitation provision is not as broad as that of the limitationsprovision in FLSA. The heading of §1691e(f) is "Jurisdiction of courts; time for maintenance ofaction; exceptions," and the first sentence of subsection (f) authorizes bringing actions in anappropriate court. Id. The word "court" does not appear in FLSA's limitation provision. See 29U.S.C. §255 ("Any action commenced on or after May 14, 1947, to enforce any cause of action .. . if the cause of action accrues on or after May 14, 1947[,] may be commenced within two yearsafter the cause of action accrued, and every such action shall be forever barred unlesscommenced within two years after the cause of action accrued . . .").
Based on these differences in text, the argument that §1691e(f) of ECOA should belimited to judicial causes of action is stronger than that regarding §255 of FLSA. There isnothing in ECOA's legislative history, however, to suggest that Congress intended to grantapplicants with claims against federal agency creditors a different and longer limitations periodthan that available to applicants of private creditors. Moreover, ECOA's limitation provision isincluded in the same section as the provision that establishes the right to compensatory damages,and the limitation provision does not specifically except administrative claims from itsprovisions. See 15 U.S.C. §1691e(a), (f). Accordingly, we conclude that ECOA's statute oflimitations also applies to administrative settlements of ECOA claims.
2. Appropriations Authorized to Pay Damages
We next examine whether § 3702 provides an independent basis of authority to expendappropriations to pay claims in the absence of an ECOA claim that could be filed in court, solong as the claims are filed with the relevant agency within the appropriate statutory time period. Although § 3702 provides an independent administrative claims handling procedure, the statutedoes not provide an independent basis of authority for paying such claims. Rather, in order forpayment of the claim to be lawful, there must be independent appropriations authority to pay theclaim. Under § 3702(d), claims that may merit relief, but that cannot be "adjusted ... using anexisting appropriation," are to be referred to Congress for possible legislative action. 31 U.S.C.§3702(d). A claim that is adjusted under § 3702 "using an existing appropriation" must be paidfrom either a pre-existing appropriations account for the year in which the claim accrued or, ifsuch an account is not available, an account for the current year for the same object and purpose. See id. § 3702(d); §1552 (1994); §1553 (1994).(9) Thus, it is evident from the text of § 3702 thatit provides no basis for paying any claims for which there is no independent appropriationsauthority, which would include ECOA claims involving compensatory damages or other reliefthat is not authorized by USDA's other operating and program authority.
OPM has informed us that it deems claims under FLSA to be timely if they are filed withOPM or the relevant agency within the statute of limitations, regardless of when or whether suchclaim is filed with a court. If this practice properly applied to ECOA claims, USDA could settleand pay any claims that were filed with USDA within the applicable two-year statute oflimitations. However, OPM has informed us that the claims that it settles under §3702 areclaims for which there is an existing appropriation, such as claims relating to back pay, livingexpenses, overtime or holiday pay, or cost of living adjustments. While §3702 provides theauthority for OPM or an agency to examine and settle those claims, the authority to pay out fundsto claimants arises from the underlying appropriation for overtime or living expenses. If benefitsare due, OPM has explained to us, it directs the relevant agency to pay the claimant theadministrative benefits to which he or she would have been entitled. There is no award ofcompensatory damages. The authority to pay compensatory damages for an ECOA claim, incontrast, derives from the waiver of sovereign immunity in ECOA and is dependent upon the factthat a court could award such damages in a civil action. See USDA Opinion at 2, 20.
Accordingly, § 3702 does not provide an independent basis for USDA to paycompensatory damages for an ECOA claim. The requirement that claims settled pursuant to §3702 be charged to the specific appropriation for the year in which the claim arose or to a currentappropriation for the same purpose is in accord with our earlier conclusion that compensatorydamages may only be paid out "if the agency would be subject to such relief in a court action." USDA Opinion at 2.
IV.Tolling of the Statute of Limitations
We next consider in what circ*mstances ECOA's statute of limitations might be tolled. First, we address whether filing an administrative claim tolls the statute of limitations. Second,we consider whether the statute of limitations is subject to equitable tolling. Finally, we considerwhether a court might hold the United States estopped from raising the statute of limitations as adefense to all or a portion of a claim.
A. Filing an Administrative Complaint
As a general matter, courts do not toll a statute of limitations simply because the plaintiffis pursuing an alternative means of obtaining relief that is not a condition precedent to bringingsuit under the relevant statute. See Delaware State College v. Ricks, 449 U.S. 250, 261 (1980)(Title VII's statute of limitations not tolled during employer's consideration of grievance);Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 236-37 (1976) (no tolling of periodfor filing EEOC claim during grievance-arbitration proceedings; collective bargaining rights areindependent of those conferred by Title VII); Johnson v. Railway Express Agency, 421 U.S. 454(1975) (statute of limitations for §1981 not tolled during processing of complaint under TitleVII; §1981 offers independent avenue of relief). While pursuit of mandatory administrativeremedies can delay the start or running of a statute of limitations, pursuit of remedies that aremerely permissive does not toll a limitations period. Spannaus v. U.S. Dep't of Justice, 824 F.2d52, 56-57, 60-61 (D.C. Cir. 1987); Conley v. International Brotherhood of Electrical Workers,Local 639, 810 F.2d 913 (9th Cir. 1987) (filing of unfair labor practice charge with NationalLabor Relations Board does not toll limitations period applicable to lawsuit against union basedon the charge; NLRB action was merely optional, though parallel, avenue of relief). Anadministrative procedure is "permissive" if its pursuit is not a precondition to pursuit of a lawsuit. Spannaus, 824 F.2d at 58. Accordingly, if filing an ECOA complaint with USDA is a voluntary,permissive administrative remedy, filing an administrative claim would not toll the ECOAlimitations period applicable to this lawsuit.
It appears that USDA's administrative process is a parallel, voluntary procedure. ECOAdoes not require an aggrieved applicant to file an administrative complaint against a governmentcreditor before filing suit in court. Nor has the FTC, which has administrative enforcementresponsibility for claims against the USDA, indicated in its regulations that exhaustion of anadministrative process is required.
USDA has suggested that 7 U.S.C. §6912(e) (1994) may require an ECOA claimant toexhaust administrative procedures before filing suit against the Secretary or the Department ofa*griculture, and, accordingly, that the statute of limitations should be tolled pending resolutionof the administrative process. Enacted in 1994, §6912(e) states:
Notwithstanding any other provision of law, a person shall exhaust alladministrative appeal procedures established by the Secretary or required by lawbefore the person may bring an action in a court of competent jurisdiction against--(1) the Secretary;
(2) the Department; or
(3) an agency, office, officer, or employee of the Department.
Id.(10) USDA has promulgated regulations prohibiting discrimination in the administration ofUSDA programs and facilities. 7 C.F.R. pt. 15, subpt. B (1997). Under §15.52(b) of thoseregulations, a person "may" file a written complaint of discrimination with the Office ofAdvocacy and Enterprise. 7 C.F.R. §15.52(b). The complaint procedure in §15.52 is notrequired by law, but it was established by the Secretary. Thus USDA has suggested that§6912(e) requires that an ECOA claimant exhaust the administrative procedure in §15.52 beforebringing a civil action.
We do not think that the process for pursuing an ECOA claim under §15.52 is an"administrative appeal procedure" within the meaning of §6912(e). An ECOA claim under§15.52 is not an "appeal" of a USDA program action. It is a separate determination of acomplaint regarding discrimination in USDA's administration of its programs. The premise of anECOA claim is that there has been a final agency determination on the underlying decisionregarding the loan or benefit. Significantly, the decisions applying §6912(e) to date all haveinvolved appeals of USDA decisions under statutes and programs administered by the USDA. See Bastek v. Federal Crop Ins. Corp., 975 F. Supp. 534 (S.D.N.Y. 1997) (farmers must appealdeduction of salvage value and market price calculation in indemnity to Risk ManagementAgency); Cottrell v. United States, 213 B.R. 33 (M.D. Ala. 1997) (exhaustion applies to RuralHousing Services procedures, which are covered by National Appeals Division); Calhoun v.USDA Farm Serv. Agency, 920 F. Supp. 696 (N.D. Miss. 1996) (exhaustion applies to failure togive former owner preference in foreclosure sale where he could have appealed to NationalAppeals Division); Gleichman v. USDA, 896 F. Supp. 42 (D. Maine 1995) (plaintiffs mustappeal suspension of participation in Rural Housing Service programs to ALJ as provided in 7C.F.R. §3017.515 (1995)). We have found no decision that does not involve implementation ofa USDA program.
We note that if §6912(e) were found to apply to complaints under §15.52, it would barany plaintiff who has filed an administrative complaint from bringing suit under ECOA in thedistrict court until USDA takes final action on the complaint. Because §6912(e) places no timelimits on the procedures established by the Secretary, moreover, plaintiffs could be barred fromcourt for an indeterminate period of time. While we have found nothing in the legislative historyof §6912(e) that elaborates on its intended purpose, it seems unlikely that Congress intendedsuch a result. The better interpretation, we believe, is that §6912(e) applies to administrativeprocedures related to statutes or programs administered by USDA. Accordingly, §15.52 is apermissive procedure, and filing an administrative complaint would not toll the statute oflimitations.
B. Equitable Tolling & Equitable Estoppel
We next consider the application of equitable principles to these claims. Courts haveattempted to distinguish the doctrine of equitable tolling from that of equitable estoppel by notingthat equitable tolling principally "focuses on the plaintiff's excusable ignorance of the limitationsperiod" and the "lack of prejudice to the defendant" while equitable estoppel "usually focuses onthe guilty actions of the defendant." See Supermail Cargo, Inc. v. United States, 68 F.3d 1204,1207 (9th Cir. 1995) (quoting Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir. 1981)).
1. Equitable Tolling
In Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), the Supreme Court heldthat "the same rebuttable presumption of equitable tolling applicable to suits against privatedefendants . . . appl[ies] to suits against the United States." Id. at 95-96. However, "[f]ederalcourts have typically extended equitable relief only sparingly" in suits against private parties, and"it is evident that no more favorable tolling doctrine may be employed against the Governmentthan is employed in suits between private litigants." Id. at 96. In Irwin, the Court observed thatequitable tolling has been found where "the claimant has actively pursued his judicial remediesby filing a defective pleading during the statutory period, or where the complainant has beeninduced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Id.(footnotes omitted). Courts have been less forgiving of "late filings where the claimant failed toexercise due diligence in preserving his legal rights." Id.
a. Is ECOA Subject to Equitable Tolling?
We thus begin with the presumption that equitable tolling applies to ECOA's statute oflimitations, and consider whether there is "good reason to believe that Congress did not want theequitable tolling doctrine to apply in a suit against the Government." United States v. Brockamp,117 S.Ct. 849, 850 (1997). In Brockamp, the Court concluded that Congress did not intend forequitable tolling to apply to the time and related amount limitations for filing tax refund claims. The Court noted that "[o]rdinarily limitations statutes use fairly simple language that can oftenplausibly read as containing an implied `equitable' tolling exception." Id. at 851. Section 6511,the limitations provision at issue in Brockamp, was quite different. It set forth its timelimitations "in a highly detailed technical manner" and imposed substantive limits on the amountrecovered that were related to the time limitations. Id. In addition, the statute containedexceptions with special time limit rules for six types of claims, none of which addressedequitable tolling. Reading an implied equitable tolling provision into that statute, the Courtobserved, would work "linguistic havoc." Id. at 852. Moreover, tax law is not "normallycharacterized by case-specific exceptions reflecting individualized equities." Id.
In contrast, ECOA's statute of limitations is relatively straightforward:
No such action shall be brought later than two years from the date of theoccurrence of the violation, except that --(1) whenever any agency having responsibility for administrativeenforcement under section 1691c of this title commences anenforcement proceeding within two years from the date of theoccurrence of the violation,
(2) whenever the Attorney General commences a civil action underthis section within two years from the date of the occurrence of theviolation,
then any applicant who has been a victim of the discrimination which is thesubject of such proceeding or civil action may bring an action under this sectionnot later than one year after the commencement of that proceeding or action.
15 U.S.C. §1691e(f). The structure of §1691e(f) is more similar to the limitation provision inTitle VII, to which the Court found equitable tolling applied in Irwin, than it is to the statute atissue in Brockamp. Like Title VII, moreover, ECOA is a remedial statute amenable toexceptions for individualized equities. Section 1691e(f) does contain explicit exceptions to thelimitation period. But the exceptions in ECOA are not as numerous or as intricate as those in theprovision in Brockamp. In addition, the exceptions in ECOA extend the limitations period toallow a plaintiff who becomes aware of discrimination after the government commencesenforcement proceedings to bring an action. This purpose is not inconsistent with applyingequitable tolling to the limitation period. We therefore conclude that ECOA's statute oflimitations is, in appropriate circ*mstances, subject to the doctrine of equitable tolling.
b. Is Equitable Tolling Warranted for these Claims?
The application of the equitable tolling doctrine depends on the facts of each case. "TheSupreme Court has suggested in Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147 (1984)(per curiam), that courts may properly allow tolling where `a claimant has received inadequatenotice, ... where a motion for appointment of counsel is pending and equity would justify tollingthe statutory period until the motion is acted upon, ... where the court has led the plaintiff tobelieve that she had done everything required of her, ... [or] where affirmative misconduct onthe part of a defendant lulled the plaintiff into inaction.'" Mondy v. Secretary of the Army, 845F.2d 1051, 1057 (D.C. Cir. 1988) (quoting Baldwin, 466 U.S. at 151 (citations omitted)). Courtshave found notice inadequate where an agency fails to provide a claimant with notice required bystatute. See Coles v. Penny, 531 F.2d 609, 614-17 (D.C. Cir. 1976) (statute of limitations tolledwhere EEOC failed to provide notice of right to sue as required by statute) (interpreting Gates v.Georgia-Pacific Corp., 492 F.2d 292 (9th Cir. 1974) (tolling statute of limitations where EEOCfailed to provide notice of right to sue required by its regulations)). In addition, failure to meet astatutory deadline "`may be excused if it is the result of justifiable reliance on the advice of agovernment officer.'" Bull S.A. v. Comer, 55 F.3d 678, 681 (D.C. Cir. 1995) (quoting Jarrell v.United States Postal Serv., 753 F.2d 1088, 1092 (D.C. Cir. 1985)). A final factor that courtshave considered is whether the plaintiff was represented by an attorney. Courts are less likely tofind equitable tolling if the plaintiff has legal representation. See, e.g., Kelley v. NLRB, 79 F.3d1238 (1st Cir. 1996) (no tolling where NLRB employee erroneously informed attorney thatNLRB would serve defendant with charges because represented plaintiffs generally deemed tohave constructive knowledge of regulatory requirements).
USDA has suggested, in particular, that the D.C. Circuit's decision in Bull S.A. mightsupport an equitable tolling argument for the ECOA claimants. In Bull S.A., the court held that acorporation justifiably relied on a sealed Certificate of Renewal for its trademark which statedthat the renewal would last twenty years from May 15, 1972. In fact, the renewal should haverun from May 15, 1971. The corporation missed the 1991 renewal deadline but applied withinthe proper time had the renewal in fact expired in 1992. Bull S.A., 55 F.3d at 682. In findingthat the period of renewal on Bull's trademark should be equitably tolled, the court stated that"Bull received an official government document, published under the signature and Seal of theCommissioner, that certified a renewal lasting until May 15, 1992. Once in receipt of thisdocument, and, . . . absent any circ*mstances that would alert Bull to the error, Bull was entitledto rely on its validity." Id.
As a general matter, USDA has suggested that claimants may be able to argue that theyjustifiably relied on the conduct of USDA officials to conclude that filing an administrativecomplaint tolls ECOA's statute of limitations. The conduct in question includes failing to alertclaimants of their right to pursue immediate relief under ECOA; inviting claimants to submitclaims for compensatory damages upon a finding of discrimination; and engaging in settlementnegotiations regarding damages. Because there is no legal requirement that the governmentprovide potential ECOA plaintiffs with notice of the right to file a civil action, ECOA claimantswill have difficulty asserting inadequate notice as a grounds for equitable tolling. CompareColes, 531 F.2d at 614-17. Absent a more specific government statement that the filing of anadministrative complaint tolled the limitations period on an ECOA civil action, it is unlikely thata court would find such conduct sufficient to apply equitable tolling. However, the application ofthe doctrine to a particular case will depend on the facts present in that case.
2. Equitable Estoppel
"The doctrine of equitable estoppel is not, in itself, either a claim or a defense. Rather, itis a means of precluding a litigant from asserting an otherwise available claim or defense againsta party who has detrimentally relied on that litigant's conduct." ATC Petroleum, Inc. v. Sanders,860 F.2d 1104, 1111 (D.C. Cir. 1988). While the Supreme Court has not foreclosed thepossibility that equitable estoppel may lie against the United States, "it is well settled that theGovernment may not be estopped on the same terms as any other litigant." Heckler v.Community Health Servs., 467 U.S. 51, 60 (1984) (footnote omitted). In fact, the Supreme Courthas reversed every finding of equitable estoppel requiring the payment of money by the UnitedStates that it has reviewed. See OPM v. Richmond, 496 U.S. 414, 427 (1990); Federal Crop Ins.Corp. v. Merrill, 332 U.S. 380 (1947). Thus, "despite the doctrine's flexibility in disputesbetween private parties, its application to the government must be rigid and sparing." ATC, 860F.2d at 1111.
A party seeking to assert estoppel against the government must do more than establish thetraditional private law elements of the doctrine, which are "`false representation, a purpose toinvite action by the party to whom the representation was made, ignorance of the true facts bythat party, and reliance.'" See id. The litigant must also demonstrate that the governmentengaged in some sort of "affirmative misconduct," OPM, 496 U.S. at 421, and that there will beno "undue damage" to the public interest. ATC, 860 F.2d at 1111-12. Accordingly, reliance on a government official's misstatement is not sufficient to estop theUnited States. Because "parties dealing with the government `are expected to know the law andmay not rely on the conduct of Government agents contrary to law,'" id. at 1111 (quotingHeckler, 467 U.S. at 63), "there is no grave injustice in holding parties to a reasonable knowledgeof the law." Id. at 1112.
Courts require special rigor in examining claims that would estop the government so as toentitle claimants to monetary payments not otherwise permitted by law. This concern isgrounded in the principle of separation of powers. For "[i]f agents of the Executive were able, bytheir unauthorized oral or written statements to citizens, to obligate the Treasury for the paymentof funds, the control over public funds that the [Appropriations] Clause reposes in Congress ineffect could be transferred to the Executive." OPM, 496 U.S. at 428. Moreover, "Congress hasalways reserved to itself the power to address claims of the very type presented by [a claimantarguing estoppel], those founded not on any statutory authority, but upon the claim that `theequities and circ*mstances of a case create a moral obligation on the part of the Government toextend relief to an individual.'" Id. at 431 (referring to congressional reference cases and privatelegislation procedures).
A plaintiff seeking to estop the government from asserting the statute of limitations inthese cases might make two arguments. First, claimants might argue that USDA's actions ledthem to believe its administrative process tolled the running of the statute of limitations on a civilaction. Second, plaintiffs might argue that USDA told them that it would settle their claims in anadministrative process, or led them to believe that relief would be available in the administrativeprocess even if the statute of limitations ran on a judicial action. This belief, in turn, may havelulled claimants into believing that they would be compensated by USDA and that it thereforewas unnecessary to seek relief in court.
Neither of these arguments is likely to succeed in the absence of affirmative misconductby the government. To qualify as affirmative misconduct, a government official's conduct mustamount to "more than mere negligence, delay, inaction, or failure to follow an internal agencyguideline." Ingalls Shipbuilding, Inc. v. Department of Labor, 976 F.2d 934, 938 (5th Cir. 1992)(quoting Mangaroo v. Nelson, 864 F.2d 1202, 1204-05 (5th Cir. 1989)). Courts look forevidence that an official's misstatement was made with "knowledge of its falsity or with intent tomislead." United States v. Marine Shale Processors, 81 F.3d 1329, 1350 (5th Cir. 1996). We areunaware of any allegation that any USDA official knowingly misled these claimants. At most, itappears that any statements or impressions were based on the official's mistaken interpretation ofthe law. Courts have been unwilling to estop the government in circ*mstances where individualsrelied on advice provided by government officials who would have been expected to have therelevant knowledge and authority. See OPM, 496 U.S. at 420 (employee's erroneous advice thatincome will not cause reduction in benefits does not estop government from reducing benefits);Merrill, 332 U.S. at 385-86 (government agent's erroneous advice that farmer's entire crop wasinsured does not estop government from denying benefits on crops excluded from coverage bystatute); Ingalls, 976 F.2d at 937 (government cannot be estopped from assessing penalties for adelay in payment even though a deputy commissioner sent plaintiff a letter excusing any delay inpayment); ATP, 860 F.2d at 1111-12 (SBA's assurance that it would guarantee payments ofsection 8(a) borrower unauthorized and therefore cannot estop government). To our knowledge,the alleged government conduct at issue here is similar to that deemed insufficient to establishestoppel in these cases. However, the application of equitable estoppel to a specific case willdepend on the facts present in that case.
V. Conclusion
ECOA's statute of limitations applies to both administrative and litigative settlements ofECOA claims, and it may not be waived by the executive branch. Because USDA's authority topay compensatory damages is derived from the fact that a court could award such damages,USDA may not settle administrative claims after the statute of limitations has run. Section 3702of title31 does not provide an independent basis of authority for the payment of administrativeclaims filed after expiration of the ECOA statute of limitations. As for tolling, filing anadministrative claim does not toll the statute of limitations on a civil action. While ECOA issubject to claims of equitable tolling or equitable estoppel in appropriate circ*mstances, courtshave rarely applied either doctrine against the United States.
Dawn Johnsen
1 Letter for Robert Franco, Associate Director, Office of Advocacy and Enterprise, U.S. Department ofa*griculture, from David Medine, Associate Director for Credit Practices, Federal Trade Commission (Nov. 3, 1992)("FTC Letter").
2 For simplicity, this opinion will refer to ECOA's limitation period as a two-year restriction.
3 In Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), the Supreme Court ruled that a statute oflimitations in suits against the federal government is presumptively subject to equitable tolling. Some havesuggested that the Court's decision to allow equitable tolling implies that it is now possible for the government itselfto waive a legislatively imposed statute of limitations. There may be cases where, in the context of a specificstatutory scheme, the courts would have the authority to hold that the government had waived the applicable statuteof limitations, such as by failing to assert the defense in a responsive pleading. See Johnson v. Sullivan, 922 F.2d346 (7th Cir. 1990) (en banc) (statutory requirement that plaintiff seek judicial review of denial of benefits within60 days of receiving a final agency determination, or within such further time as the Secretary may allow, waived ifnot raised in a responsive pleading as an affirmative defense). The general rule, however, still remains that thelimitations period is a condition of the waiver of sovereign immunity. See Irwin, 498 U.S. at 94; Henderson v.United States, 116 S. Ct. 1638, 1651 n.3 (1996) (Thomas, J., dissenting) ("Irwin did mark a departure from ourearlier, and stricter, treatment of statutes of limitations in the sovereign immunity context, but our decision in UnitedStates v. Williams, 514 U.S. 527 (1995), makes clear that statutes of limitations in suits brought against the UnitedStates are no less jurisdictional prerequisites than they were before Irwin.") (citations omitted); see also LawyersTitle Ins. Co. v. Dearborn Title Corp., 118 F.3d 1157, 1166 (7th Cir. 1997) (unlike statutes of limitations in actionsbetween private parties, limitations in suits against the United States are jurisdictional and not subject to waiver).
As a general matter, it seems clear that Irwin held that the doctrine of equitable tolling was implicitlyincluded within the waiver of sovereign immunity granted by Congress as part of the statute. Irwin, 498 U.S. at 95-96. Irwin did not alter the well-established precedent that statutes of limitation reflect a condition on Congress'swaiver of sovereign immunity. See id. at 94. The Court has repeatedly affirmed that principle. See, e.g., UnitedStates v. Williams, 514 U.S. 527, 534 (1995); see also Richmond, Fredericksburg & Potomac R.R. Co. v. UnitedStates, 945 F.2d 765, 769 (4th Cir. 1991); Dillard v. Runyon, 928 F. Supp 1316, 1324 (S.D.N.Y. 1996), aff'd, 108F.3d 1369 (2d. Cir. 1997); cf. Calhoun County v. United States, 1998 WL 3337 (5th Cir. Jan. 22, 1998) (Irwinreinterpreted the intent behind congressional waivers of sovereign immunity, but did not necessarily alter the natureof the conditions on that waiver). Indeed, the Court reaffirmed this principle just months before issuing its decisionin Irwin, see United States v. Dalm, 494 U.S. 596, 608 (1990), and Irwin nowhere rejects Dalm or the cases citedtherein. We therefore do not read Irwin to imply that the statute of limitations in a suit against the United States iswaivable, either as an affirmative defense or at the discretion of an executive officer. See Bath Iron Works Corp. v.United States, 20 F.3d 1567, 1572 n.2 (Fed. Cir. 1994) ("Tolling is not the same as waiving. Presumably, therefore,Irwin merely holds that those time limits, while jurisdictional, can be equitably tolled in certain circ*mstances.").
4 As previously noted, ECOA vests the FTC with administrative enforcement responsibility not specificallycommitted to another federal agency, see 15 U.S.C. §1691c(c), but does not expressly address the administrativesettlement of ECOA claims against federal agency creditors. For the purposes of this opinion, we assume withoutdeciding that neither ECOA nor the Federal Trade Commission Act provides for the settlement of claims againstfederal agency creditors within the meaning of §3702(a), and that the provisions of §3702 would apply toadministrative settlements of these claims.
5 Although the opinions and legal interpretation of the GAO and the Comptroller General often provide helpfulguidance on appropriations matters and related issues, they are not binding upon departments, agencies, or officersof the executive branch. See Bowsher v. Synar, 478 U.S. 714, 727-32 (1986).
6 OPM, which now has the authority to settle claims involving leave and compensation of federal civilianemployees under §3702(a)(2), informed us that it has continued to apply the FLSA statute of limitations to FLSAclaims filed against federal agencies.
7 We note that one district court has held that the two or three-year limitation in FLSA applies to bothadministrative and judicial claims. The court further stated that while it was aware that GAO had applied a six-yearlimitation to FLSA claims for many years, "GAO was wrong to do so" and had no such authority. Adams v.Bowsher, 946 F. Supp 37, 42 (D.D.C. 1996).
8 A 1951 opinion of the Attorney General concluded that a statute of limitations for suits brought against theCommodity Credit Corporation ("CCC") did not bar administrative payment of claims filed with the agency after theexpiration of that limitations period. Commodity Credit Corporation, Payment of Claims Barred by Statute ofLimitations, 41 Op. Atty. Gen. 80 (1951). The 1951 opinion predates GAO's announcement of its revisedinterpretation of §3702, and, more importantly, Congress's response to that revised interpretation. The 1951opinion therefore does not constitute precedent that counsels a different result in this matter.
9 Under § 1552 of title 31, agencies are required to keep accounts open on fixed appropriations for five years. Insettling a claim under § 3702 that accrued within five years, OPM explained that it would direct the relevant agencyto pay the claim from the money remaining in its account for the relevant appropriation for the relevant year. If nofunds remained in the account, or the claim accrued more than five years earlier (and the appropriations account hasbeen closed), 31 U.S.C. § 1553 provides that any obligation that would have been properly charged to the closedappropriation account "may be charged to any current appropriation account of the agency available for the samepurpose." Id. § 1553(b)(1).
10 Because this provision was not enacted until October 1994, it provides no grounds for tolling the statute oflimitations on claims that accrued before October of 1992.
