apply to the f c c a time bar and i'd like to begin by focusing on a few of the issues that arose last hour that are particularly important to understanding congress's intent to start with the questions justice scalia and justice kagan that you were asking at the end about the nature of our rule and what separates the statute from other statutes i want to be very clear we're not purging a categorical rule about all pretty erwin statutes here we have statutes specific evidence about the f t c a that makes clear that congress did not it was not only section twenty one and that context but also predecessor provisions and other similar statutory requirements and that's what the court said in henderson and went along the line of this court's decisions interpreting similar requirements have said that those requirements it seems to me very similar is that in an area here in which congress doesn't generally say what it once with respect to some kind of procedural rule maybe because congress doesn't usually think and we have one set of interpretive rules to deal with that situation and then those interpretive rules basically switch off and we get the opposite set of interpretive rules and the way it's worked in the private right of action cases we don't know back and say well gosh you were in acting the statute in the world of court for yash and you know used language that was identical to language that the court assumed gave rise to a private right back in there and so you get a private right of action to we've not said that we've said you know now we're in a different world and we're going to require more of you then what the old than the old language that gave rise to a private right of action under court why is this any different just take in this court has said in the implied private right of action context that you have to look at the contemporary legal context of that was the canon case that we cite in our opening brief in our ply brief and this court and alexander versus  the history of the ca because i think it's perfectly clear that congress at every turn at every relevant historical juncture signalled its approval of the view that this time could not be told congress has made significant changes to the time are choice rather than an inadvertent omission in one nine hundred forty nine congress was aware that there had been individual cases of hardship and debated in one of the hearings of whether to create a reasonable cause exception instead of doing so congress decided to extend the claims sixty extra days if the claimant was out of luck because the time of the statute had run by the time the united states was substituted as a defendant and that exception that congress introduced in one nine hundred eighty eight would have been entirely unnecessary if congress thought that courts could take care of  under the f t c as claimant friendly certainly that process is claimant friendly but when the court has emphasized that concern in other cases and i'm thinking here but when and henderson the court was looking specifically at the time bar and whether it was cl friendly and by when the time part south had a provision that allowed the secretary to extend out the limit for appealing a social security benefits denial and the secretary had interpreted that to encompass principles of equity and fairness and henderson when the court emphasized the claimant bending nature of the procedure on that case the court emphasized that there was no time limit at all for a veteran to present his claim so in those cases it was the time our that was claimant friendly and here we don't have that at all we have a strict absolute limit that has no space within the text to permit any notions of claimant i mean this so i think that is a relevant distinction between those cases where it has made a difference and where it has not  saw they're holding a new room he says that he says that now a waiver of sovereign immunity cannot be implied but must be expressed once congress has made such waiver we think that making the rule of equitable tolling applicable to suits against the government in the same way that it is applicable to private suits amounts to little broadening such a principle da da da and that's what we now as not the court i'm not sure applied or when the statutes that were enacted before it has justice now if in fact we were to hold with you how hard would we justify that i mean this is a statute that as much as any is trying to equate with sovereign immunity trying to equate private suits against private people with suits against the government so if sume times are when applauds to approve or when statute but no one in congress thought that they would be doing that why isn't this case in that well let me tell you that i know you've gotten many many answers but the answers that i hear are all answers that congress at the time probably thought that equitable tolling wouldn't apply i agree that is probably what they thought if they thought about it but the same is probably true of dozens of statutes that were passed so what's the distinction because says we now are laying down we think this case of words as an opportunity to adopt a more general rule he thinks he's applying a new rule and that's applying to prior can be over i agree with you that does say it is likely to be a realistic assessment of legislative intent that is one reason given the others if i don't agree with you but that was meant there would be equitable tolling and that's why my ask this question that would seem to me to be true of many statutes if not i will give them passed before or when and yet we have applied or when backwards end will be justice prior that it's easier for the government to rebut the presumption with respect to peter when statutes because of course under erwin this court does have to consider what the prevailing and contemporary legal context was at the time the statute was  before seventy two that's correct justice ginsburg of course there is a relevant change in the law that happened in that time period in one thousand sixty seven this is of course after they had been reenacted this court decided honda versus clarke the first decision holding that there could be equitable tolling in a suit against the government and by the time congress an act of title seven in one thousand nine hundred seventy two it was legislating against a backdrop where there wasn't a uniform line of precedents from this court saying that to the reason the court reached that conclusion that there could be equitable tolling notwithstanding the sovereign immunity considerations it's because the statute in that case the trading with the enemy act had been expressly patterned after the federal bankruptcy act and this court said that lower courts had interpreted the bankruptcy act to permit equitable tolling and so the court said that the trading with the enemy action be interpreted the same way that's precisely the argument we're making here it's an argument about how congress understood these words when it took them directly from the context and import of them into the f t c j i'd like to make a brief observation about respondents primary effort to distinguish the tucker act cases and this is the distinction that respondent tri claim for money damages and we want to point is this never distinguished between the powers of the court of claims and powers of district courts with respect to equitable doctrines equitable recoupment equitable reformation of a contract the equitable doctrines of presumptions that should apply with respect to equitable tolling it also doesn't do anything to explain the courts tucker act cases if in fact respondents were right and this was a function of the tribunal then what this court could have said in those cases is here's a statute min actions the federal government was out ahead of the states and this house report that accompanies the one nine hundred forty six legislation notes only four states that had waived their sovereign immunity for tort claims by one nine hundred sixty nine it was only seventeen states that had fully with th condition on the waiver of sovereign immunity and congress intended it to be interpreted marilee there are no further questions i'd like to reserve the remainder of my time  respect to the filing provisions so there already disha reasons with respect to administrative present and and on lot of the arguments that the government has been making particularly in the first argument in wong simply completely different scheme from the scheme that congress passed in one nine hundred forty six the tucker act the suit filing deadline runs from a cruel there's no present requirement the statute of limitations for filing a lawsuit is six years from work rule there are statutory disability provisions f t ca the suit filing deadline now runs from any agency action from the final determination presentment require the regulations that what's supposed to happen are quote informal discussions negotiations and settlement rather than any formal or structured process the notion of applying a rigid indeed jurisdiction rule to that very informal process flies in the face of the whole in formality that congress set up for the suit initiating process secondly without need to say there were no prior cases talking taking off as to what the statute of limitations look like looks like title seven this court tells us that is the statue of limitations in title seven and design this court tells us that the certainly under way and for reasons that i will explain in a little bit but then when congress reenacts this in one thousand and sixty six it makes abundantly clear that that conclusion is correct because now we've got this presentment requirement which i think rep pressures congressional intent with respect to what he was thinking on jurisdiction but i will circle back to this and moment as i said but i do agree with everything are not favored and are you saying that to him temp was refreshed so that even if congress originally thought this was jurisdictional in the narrow sense it's now no longer is because of the adoption of the present provision i am not justice scalia let me just be clear our position is from nineteen forty six on it has always been subject to equitable  never been jurisdictional but to the extent that anyone doubts that because as justice alito points out congress wasn't thinking about any of this so there we are talking about is a battle of presumptions we have two clear statement rules and i grant you justice scalia that there's another clear statement rule with risp or another presumption that is with respect to choosing language from another source which i will also get to know in a moment but let me just if i may finish on resent condoms the presumption in favor of equitable tolling and that really is a version of the point that just to set up my own i was making for it is at least relevant that the statute here runs from a cruel and not from some hard and fast point and the the government is making this argument that our in concealment point is really going to crude point well if it is then that means that the same conversations one would have about for telling concealment one would have about a cruel anyway so i kept promising that i was changes things as to every other statue moving forward but ever so ticked off a series of differences between the federal tort claims act and the tucker act and this difference in forum was one of them so from the start and i mean eight hundred sixty three the the claims court was just a very different body from a district court congress a view that it really is an arm of congress at first and then it got adjudicatory powers but it didn't have been eighteen sixty three when congress passed the statute and in the eight hundred seventy s and eighty's and into the early twentieth century when this quote was you contradict the government on that point and through the government through just the opposite the government did say just the opposite and the government cites several cases now which is  decided thin had been decided it was already set in stone that this was a court whose for whom the statute of limitations was jurisdictional now the case is the government sites its best case is bull  purport to say that but they did say that the court of claims currently has that power and i grant you that i'm that that may sound like splitting hairs but what we're trying to we're trying to get behind what this court was doing back in the eight hundred seventy s and example this court said that the court of claims action with which the government chalks up the equity actually quote seems to us to fit within these words that is the words of the tucker act quote in their obvious and literal sense but i don't want to dwell too much on on the difference between the forms because if i could just pause there i mean obviously i'll go back and reread but will they said the money should be returned because it offended agree with you that is the one that is the closest case to what the government's position is but those other cases or to the extent that the court of claims is exercising what looks like equity it's always in favor of the government which is consistent with the manner in which the court of claims was born it was intended to be a parsimonious donor out of government funds so i six for the reasons that i've described but there are so not in one nine hundred forty six first they've already mentioned this distinction secondly there are there is a distinction in congress understood there to be a distinction between torts and contract claim someone on the one hand and contractor takings claims on the other hand contract claims and takings claims even contracts federal contracts are governed by federal law toit's the congress made the decision that twenty claims are going to be governed by state law and it dotted statutes of limitations that mimic state law statutes of limitations that one year statute of limitations was an effort to try to minute mimicked what states were doing and it changed to two years congress said because it wanted to mimic what states were doing a little bit later and it's important to understand that the killing i don't i don't believe that is true equitable tolling has been a rule that court the courts have applauded since the eighteen hundreds to all manner of claims torts were no cases she same in reverse of sovereign immunity yet claims against states which is slightly different oh yes yes yes so so let me just rephrase what i understand the government to be arguing exceptions but they're not case by case they or if you're overseas as mr staffer said earlier actually doesn't matter whether you're monitoring the docket and you can fully preserve you or you or claim this it's just sort of a flat out boy and those are the ones that that i believe the government is speaking about those are statutory and it's mr chaper pointed out statutory exclusions from the statutes of limitations  o your lawsuit you have to present your claim first to the agency well in order to file a lawsuit in it outside of this context you also have to file a complaint the filing of a complaint is but that doesn't mean that the time limit for filing it is jurisdictional so to hear if indeed the filing of an administrative form you know this administration presented and is jurisdictional that doesn't mean that the time limit for filing it is also jurisdictional but i said there were two halves the second half is a green with mr shopper this court came to a conclusion in the older conclusion is you can't have your lawsuit without exhausting administrative remedies that was not stated as the jurisdictional ruling it was it is analyzed much more like an exhaustion ruling to my mind which doesn't  so i was beginning to tick off some of the differences between the federal tort claims act and the tucker act and i was talking about the differences in statutes of limitations the differences  nature of the forums the differences in the nature of the law and i want to come back to that last one the f t c a treats the government like a private individual it says that the re time is in the statute and it treats the government to the chief justices question as a private individual with respect to liability so it's not with respect to the procedures that might come up but it sounds with respect to to go back quite a while why not just say whatever the presumptions were with respect to the jurisdictional nature in the tucker act in one nine hundred forty six or even thereafter irwin presumption which this court said and or when it would you get the same result and that's that's the fundamental point on the precedents that i want to make sure to emphasize our argument is not that this vision of what congress must've intended that irwin says is wrong that is not what congress intends just because it way of sovereign immunity and so i don't think it can be regarded as such a sea change because the basic principle is you're looking to legislative intent and he said the the late chief at the risk assessment of legislative intent is likely to be found based on the presumption of course know subject to rebuttal so that doesn't seem to me to be the whole point is we think this is how best to find legislative intent and that i thought has always been the rule well that's always been the rule your honor in the private context of the government is now being put in the private context but that was not always the rule with respect to the government and certainly not consistently because we have soriano i mean that was not a legislative intent  the view was not that we think the presumption of legislative intent is is no equitable tolling oh well you know i don't i beg to differ as i read kendo and they didn't this court did not use phrases like presumption but what this court did was to say congress didn't say anything about this but it was legislating against a backdrop of waiving sovereign immunity and when congress waive sovereign immunity we have to read statutes any particular way we're going to read them very strictly says no that's not how we're going to read statutes that the better way to read statutes is to assume the opposite that congress did not intend statutes of limitations to be jurisdictional and sure and by the way john our son says and i quote it was it was a quote a turn in the course of the law which now quote places great weight upon the equitable importance of treating the government like other litigants and less weight on the special governmental interest in protecting public bonds with the court props by accident but almost took directly out of the federal to claims act treating the government like it treats other parties that doesn't play out plainly in this context and the reason is as was cooperated in quite a bit detail earlier this morning the notion of fixating on the the statutes or statute that this court was interpreted in both clare and rotella is another and then layer on top of that the fact that the federal that the tucker act no longer even has forever barred in the language and still this court says it bears the same meaning and it points out in john r sans that the change in language did not make a fundamental difference very language for every board is quote an ordinary statute of limitations so we just pause and see if the court has other questions that it wants to do so they're all here for the questions if i could just make three points first with respect to the administrative presentment requirement in particular i want to be very clear on this from the beginning from nine hundred forty six forward there was an optional administrative present procedure and this is appears in our brief it page nine this is the original text of the time bar and it uses the very same operative language with respect to that administrative presentment option every claim against the united states shall be forever barred and less so this is a procedure that has been in the f t c a from the very beginning in one nine hundred sixty six what congress did is make that administrative present requirement mandatory but when it did so it did so against the backdrop room for any exception to it but every lower court has understood macneil to be jurisdictional and congress in one nine hundred eighty eight when it an act of the westfall act specifically said in the house report there that the administrative exhaustion requirement was  i created that that narrow exception to permit an extra sixty days so i think it is clearly settled that the exhaustion requirement at this point is jurisdictional but the point i was trying to make about the one nine hundred sixty six reenactment is there against that consistent is pretty typical for your ordinary run of the mill statute of limitations it sounds pretty daunting you know forever barred apparently that's the normal language that's used and it's absolutely the case mr chief justice that it's not forever part itself that necessarily has magic import here it's the tucker act analogy the fact that congress got this language from the tucker act and that in that context which was a parallel context it had been interpreted to be jurisdictional which makes the difference here every statute will have to be  ated in light of not just the text but its context and history are exactly the problem because the be the better language in irwin is again the chief justice a continuing effort on our part to do so each case on opportunity to adopt a more general rule to govern the applicability of equitable tumbling in suits against the government yet everything i've heard not everything many of the things i've heard so that you do special because rd here congress really intended it how do we reconcile that with the two sentences i just read the justice breyer i think that it would be very easy if the urban presumption were just conclusive but it's not the court adopted that presumption is a way to implement congressional intent and the court made clear that it's rebuttable which means that the government is if the government can come forward with statute specific evidence that it was rebutted the court needs to honor congressional intent in an individual case urban presumption can't excuse the normal statutory interpretation process looking at the text context and history a pretty point on the court of claims issue if i understand respondent he would distinguish our cases by saying that they were all based difference between the court of claims and the district court such that the language would be interpreted in fundamentally different ways based only on the tribunals a final point i'd like to make try and back to just focus on what i understand to be the basic divide between the parties in this case respondents and those cases seek primarily to rely on a general presumption that or one presumption which was announced with this particular statute in mind the government has come forward with an overwhelming decision of the ninth circuit thank you