# Irwin v. Department of Veterans Affairs/Concurrence White

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions White Stevens
Justice WHITE, with whom Justice MARSHALL joins, concurring in part and concurring in the judgment.
Although I agree with the Court that the 30-day period under 42 U.S.C. § 2000e-16(c) begins to run when the notice from the Equal Employment Opportunity Commission is delivered either to the claimant or the claimant's attorney, I do not join the portion of the opinion holding that the 30-day time period is subject to equitable tolling, see ante, at 93-96.
As the Court recognizes, see ante, at 94, statutory deadlines for suits against the Government, such as the one in this case, are conditions on the Government's waiver of sovereign immunity. See, e.g., United States v. Mottaz, 476 U.S. 834, 841, 106 S.Ct. 2224, 2229, 90 L.Ed.2d 841 (1986); United States v. Kubrick, 444 U.S. 111, 117-118, 100 S.Ct. 352, 356-357, 62 L.Ed.2d 259 (1979). As such, they must be " 'strictly observed and exceptions thereto are not to be implied.' " Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981) (quoting Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957)); see also Block v. North Dakota ex rel. Bd. of Univ. and School Lands, 461 U.S. 273, 287, 103 S.Ct. 1811, 1819, 75 L.Ed.2d 840 (1983). In my view, the Court has failed to "strictly observe" the terms of the statute at issue in this case.
Congress did not expressly provide for equitable tolling of the 30-day filing deadline in § 2000e-16(c). The Court, however, holds that like statutes of limitations for suits between private litigants, limitations periods for suits against the Government will now presumptively be subject to equitable tolling. Ante, at 95-96. That holding needlessly reverses at least one of this Court's prior decisions and is in tension with several others.
Because of the existence of sovereign immunity, we have traditionally held that the Government's consent to be sued " 'cannot be implied but must be unequivocally expressed.' " United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969)). That rule applies even where there is a contrary presumption for suits against private defendants. Our decision in Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986), is instructive on this point. There, we held that the Government was not liable under the federal provisions of Title VII for interest. In reaching that conclusion, we reaffirmed the longstanding rule that despite consent to be sued, the Government will not be liable for interest unless there is a separate explicit waiver to that effect. Id., at 316-317, 106 S.Ct., at 2962. Although the statute in that case provided that the Government was to be liable "the same as a private person" for "costs," including a "reasonable attorney's fee," we stated that "we must construe waivers strictly in favor of the sovereign . . . and not enlarge the waiver 'beyond what the language requires.' " Id., at 318, 106 S.Ct., at 2963 (citations omitted). It seems to me that the Court in this case, by holding that the time limit in § 2000e-16(c) is subject to equitable tolling, has done exactly what Shaw proscribes-it has enlarged the waiver in § 2000e-16(c) beyond what the language of that section requires.
Not only is the Court's holding inconsistent with our traditional approach to cases involving sovereign immunity, it directly overrules a prior decision by this Court, Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957). The question in Soriano was whether war tolled the statute of limitations for claims against the Government filed in the Court of Claims. In arguing for equitable tolling, the plaintiff there relied on a case in which this Court had held that war had tolled a limitations statute for purposes of private causes of action. Id., at 275, 77 S.Ct., at 273. The Court was not persuaded, stating that "[t]hat case involved private citizens, not the Government. It has no applicability to claims against the sovereign." Ibid. The Court explained:
"To permit the application of the doctrine urged by petitioner would impose the tolling of the statute in every time-limit-consent Act passed by the Congress. . . . Strangely enough, Congress would be required to provide expressly in each statute that the period of limitation was not to be extended by war. But Congress was entitled to assume that the limitation period it prescribed meant just that period and no more. With this intent in mind, Congress has passed specific legislation each time it has seen fit to toll such statutes of limitations because of war. And this Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Id., at 275-276, 77 S.Ct., at 273 (footnote omitted).
As in Soriano, here Congress "was entitled to assume that the limitation period it prescribed [in § 2000e-16(c) ] meant just that period and no more."
The Court deviates from the above cases because it believes that our decisions concerning time requirements "have not been entirely consistent." Ante, at 456. Even if that belief is well founded, the doctrine of stare decisis demands that we attempt to reconcile our prior decisions rather than hastily overrule some of them. Such an attempt would reveal that Bowen v. City of New York, 476 U.S. 467, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986), cited by the Court for the alleged inconsistency, see ante, at 94, is not irreconcilable with the cases discussed above. In Bowen, we allowed equitable tolling against the Government because, among other things, the statutory time period there, set forth in 42 U.S.C. § 405(g), expressly allowed tolling. Section 405(g) requires that a civil action be filed "within sixty days . . . or within such further time as the Secretary may allow." See 476 U.S., at 472, n. 3, 106 S.Ct., at 2026, n. 3 (emphasis added). We noted that the provision in that section allowing the Secretary of Health and Human Services to extend the filing deadline expressed Congress' "clear intention to allow tolling in some cases." Id., at 480, 106 S.Ct., at 2030. Moreover, we observed that the regulations promulgated by the Secretary governing extensions of time under that provision were based on equitable concerns of fairness to claimants, further "support[ing] our application of equitable tolling." Id., at 480, n. 12, 106 S.Ct., at 2030, n. 12. The statute in this case, unlike the one in Bowen, does not manifest any "clear intention" by Congress to allow tolling and thus should be subject to the rule articulated in Soriano, supra.
Accordingly, I concur in the judgment because I do not believe that equitable tolling is available as a defense to the 30-day filing requirement, and I would not reach the factual issue whether equitable tolling is supported by the circumstances of this case.

## Notes

* ↑ The Court's failure to recognize the importance of sovereign immunity in statutory construction also ignores Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). In that case, we held that Title VII provisions for federal employees pre-empt other remedies for discrimination in federal employment. We reached that conclusion despite our earlier holding in Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), that Title VII provisions for private employees did not pre-empt other discrimination remedies. We found Johnson to be "inapposite" because, among other things, "there were no problems of sovereign immunity in the context of the Johnson case." 425 U.S., at 833, 96 S.Ct., at 1968.
* ↑ The Court also asserts that allowing equitable tolling against the Government "is likely to be a realistic assessment of legislative intent." Ante, at 95. It is unclear, however, why that likelihood, rather than the opposite, is true. The statute here, for example, was enacted in 1972 when the presumption was, as set forth in Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957), that statutes of limitations for suits against the Government were not subject to equitable tolling. It is unlikely that the 1972 Congress had in mind the Court's present departure from that longstanding rule.
* ↑ Stare decisis is "of fundamental importance to the rule of law," Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 494, 107 S.Ct. 2941, 2957, 97 L.Ed.2d 389 (1987), because, among other things, it promotes stability and protects expectations. Vasquez v. Hillery, 474 U.S. 254, 265-266, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). Although always an important guiding principle, it has "special force" in cases such as this one that involve statutory interpretation because Congress is in a position to overrule our decision if it so chooses. Patterson v. McLean Credit Union, 491 U.S. 164, 172-173, 109 S.Ct. 2363, 2370-2371, 105 L.Ed.2d 132 (1989).
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