Statute of Limitations and Settlement of Equal Credit

Opportunity Act Discrimination Claims Against the

Department of Agriculture

The Attorney General may not waive the statute o f lim itations in the litigation or com prom ise of 

pending claim s against the United States.

Absent a specific provision to the contrary, a statute of limitations on civil actions also should apply 

to adm inistrative settlements o f claim s arising under that statute pursuant to 31 U.S.C. §3702.

31 U S.C. §3702 does not authorize the Department of Agriculture to pay com pensatory dam ages 

in an adm inistrative settlement o f an ECOA claim if E C O A ’s two year statute o f lim itations has 

run.

Filing an adm inistrative claim with USDA does not toll EC O A ’s statute o f limitations.

Although EC O A ’s statute of limitations is, in appropriate circum stances, subject to the doctrines of 

equitable tolling and equitable estoppel, courts have rarely applied either doctrine against the United 

States.

January 29, 1998

M e m o r a n d u m O p in io n f o r t h e A s s o c i a t e A t t o r n e y G e n e r a l

This memorandum responds to your request for advice on whether the statute 

of limitations in the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691—I691f (1994 

& Supp. I 1995) (“ ECOA” ), applies to administrative settlements of ECOA 

claims. You also have asked us whether the government may waive the statute 

of limitations, and under what circumstances the statute of limitations might be 

tolled.

We have concluded that ECOA’s statute of limitations does apply to administrative settlements of ECOA claims and that the statute of limitations cannot be 

waived by the United States, either in litigation or in the administrative process. 

As for tolling of the statute of limitations, we have concluded that filing an 

administrative complaint does not toll the limitations period for a civil action. 

While ECOA is, in relevant circumstances, subject to the doctrines of equitable 

tolling and equitable estoppel, courts infrequently apply these doctrines against 

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, national origin, sex or marital status. 15 U.S.C. § 1691(a). A “ creditor” under the act includes any person who regularly extends, renews, or continues credit. Id. § 1691a(e). A “ person” is “ a natural person, a corporation,

11
Opinions o f the Office o f Legal Counsel in Volume 22

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 of which has authority over certain categories of creditors. Id.

§ 1691c(a). Enforcement responsibility not specifically committed to another federal agency is vested in the Federal Trade Commission (“ FTC” ), which is to 

use its powers under the Federal Trade Commission Act, 15 U.S.C.A. §§41-58 

(West 1997), to enforce ECOA’s requirements. 15 U.S.C. § 1691c(c). The Department of Agriculture’s (“ USDA’s” ) farm credit programs fall under the authority 

of the FTC. The FTC has authorized USDA to process ECOA claims arising from 

USDA programs.1

Section 1691e of ECOA also provides for a private right of action against creditors who violate the discrimination prohibitions of the act. Under subsection (a), 

all creditors are liable for compensatory damages: “ [a]ny creditor who fails to 

comply with any requirement imposed under this subchapter shall be liable to 

the aggrieved applicant for any actual damages sustained by such applicant acting 

either in an individual capacity or as a member of a class.” Id. § 1691e(a). Subsection (d) authorizes the imposition of attorney’s fees and costs in a successful 

action. Id. § 1691e(d). No private action may be brought later than two years after 

the occurrence of the violation, unless the Attorney General or the agency with 

administrative enforcement responsibility commences an enforcement proceeding 

within two years. In that case, an applicant may bring a civil action within one 

year of the commencement of the enforcement proceeding. Id. § 1691e(f).

In a 1994 opinion, this Office opined that ECOA applies to federal agencies 

and that it waives the sovereign immunity of the United States for monetary relief. 

Accordingly, we advised USDA that the Secretary could provide monetary relief, 

attorney’s fees, and costs in administrative settlements of ECOA discrimination 

claims if a court could award such relief in an action by an aggrieved person. 

Authority o f USDA to Award Monetary Relief fo r Discrimination, 18 Op. O.L.C. 

52 (1994) (“ USDA Opinion” ). USDA accepts and processes ECOA complaints 

pursuant to its process for investigating any discrimination complaint in its programs, which is set forth at 7 C.F.R. § 15.52 (1997). Those regulations permit 

any person to file a written complaint regarding discrimination in any program 

or facility directly administered by USDA. Id.

In October of 1998, fourteen plaintiffs filed a class action suit against USDA 

alleging that USDA had discriminated against them, and other similarly situated 

individuals, on the basis of their race in the administration of farm loans and 

credit programs during the period of January 1983 to January 1997. Pigford v.

Glickman, 182 F.R.D. 341 (D.D.C. 1998). The court granted a stay of that action 

to allow the plaintiffs and the United States to explore options for settling the

1 Letter for Robert Franco, Associate Director, O ffice of Advocacy and Enterprise, U.S. Department of Agriculture, 

from David M edine, Associate Director for Credit Practices, Federal Trade Commission (Nov. 3, 1992) (“ FTC 

Letter” )

12
claims of the named plaintiffs and the putative class members. As part of the 

Department’s consideration of settlement options, the Office of the Associate 

Attorney General asked this Office for oral advice on the application of ECOA’s 

statute of limitations to claims in litigation and to claims in USDA’s administrative 

settlement process. Subsequently, you asked for a formal opinion on the following 

questions: 1) can the United States waive the statute of limitations in an ECOA 

civil action; 2) does ECOA’s statute of limitations apply to the administrative 

settlement of ECOA claims by USDA; 3) does the filing of an administrative 

complaint with USDA toll the statute of limitations; and 4) would the doctrines 

of equitable tolling or equitable estoppel apply to these cases?

Our analysis proceeds as follows. In Part II, we conclude that the Attorney 

General may not waive the statute of limitations in the litigation or compromise 

of these claims. In Part III, we conclude that because USDA may make administrative settlements of ECOA claims that include compensatory damages only 

where a court could award such relief, USDA may not waive the statute of limitations in administrative settlements. Part III also concludes that section 3702 of 

title 31 does not provide an independent basis of authority for the payment of 

administrative claims filed after expiration of the ECOA statute of limitations. 

Moreover, even where an administrative claim is filed within the ECOA statute 

of limitations, USDA may not make payment on the claim without relevant appropriations authority. We understand that USDA’s appropriation authority, however, 

would provide no basis for paying compensatory damages under ECOA where 

the statute of limitations has expired and no timely claim was asserted in court. 

Part IV examines the circumstances in which ECOA’s statute of limitations might 

be tolled. That part concludes that filing an administrative claim does not toll 

the statute of limitations on a civil action. It then concludes that although the 

doctrines of equitable tolling and equitable estoppel would apply to ECOA in 

appropriate circumstances, courts infrequently apply these doctrines against the 

United States.

II. Waiver in Litigation

Ordinarily, a civil action for compensatory damages under ECOA must be filed 

no later than 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 ECOA commences an enforcement proceeding within two years 

from the date of the occurrence of the violation, or when the Attorney General 

commences a civil action under this section within two years from the date of 

the occurrence of the violation, “ any applicant who has been a victim of the 

discrimination which is the subject of such proceeding or civil action may bring

Statute o f Limitations and Settlement o f Equal Credit Opportunity Act Discrimination Claims Against

the Department o f Agriculture

13
Opinions of the Office o f Legal Counsel in Volume 22

an action under 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 cause of action against the United States constitutes a term of consent to 

the waiver of sovereign immunity. See Memorandum for James W. Moorman, 

Assistant Attorney General, Land & Natural Resources Division, from John M. 

Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Pueblo o f Taos

v. Andrus at 2 n.l (Mar. 30, 1979) (citing cases). The doctrine of sovereign immunity precludes suit against the United States without the consent of Congress, and 

the terms of its consent define the extent of a court’s jurisdiction. See United

States v. M ottaz, 476 U.S. 834, 841 (1986). In particular, “ ‘[w]hen waiver legislation contains a statute of limitations, the limitations provision constitutes a condition on the waiver of sovereign immunity.’ ” Id. (quoting Block v. North Dakota,

461 U.S. 273, 287 (1983)). Because the terms of consent are established by Congress, see id., modifying the terms of consent requires legislative 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 power 

to 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 cases and are limited to specific statutory authorizations for 

such waivers). Thus the Attorney General cannot waive the statute of limitations 

in the litigation or in the compromise of these pending claims.3

2 For simplicity, this opinion will refer to ECOA’s limitation penod as a two-year restriction

3 In Irwin v. Department o f Veterans Affairs, 498 U.S. 89 (1990), the Supreme Court ruled that a statute of limitations in suits against the federal government is presumptively subject to equitable tolling Some have suggested 

that the Court’s decision to allow equitable tolling implies that it is now possible for the government itself to waive 

a legislatively imposed statute of limitations. There may be cases where, m the context of a specific statutory scheme, 

the courts would have the authority to hold that the government had waived the applicable statute of limitations, 

such as by failing to assert the defense in a responsive pleading. See Johnson v. Sullivan, 922 F.2d 346 (7th Cir. 

1990) (en banc) (statutory requirement that plaintiff seek judicial review of denial of benefits within 60 days of 

receiving a final agency determination, or within such further time as the Secretary may allow, waived if not raised 

in a responsive pleading as an affirmative defense). The general rule, however, still remains that the limitations 

period is a condition of the waiver of sovereign immunity. See Irwin, 498 U.S. at 94; Henderson v United States,

517 U.S. 654, 678 n.3 (1996) (Thomas, J., dissenting) ("Irw in did mark a departure from our earlier, and stricter, 

treatment o f statutes of limitations in the sovereign immunity context, but our decision in United States v. Williams,

514 U.S. 527 (1995), makes clear that statutes o f limitations in suits brought against the United States are no less 

jurisdictional prerequisites than they were before Irwin.") (citations omitted); see also Lawyers Title Ins. Co v 

Dearborn Title Corp., 118 F.3d 1157, 1166 (7th Cir. 1997) (unlike statutes of limitations in actions between 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 implicitly included 

within the waiver o f sovereign immunity granted by Congress as part of the statute. Irwin, 498 U.S. at 95-96 

Irwin did not alteT the well-established precedent that statutes of limitations reflect a condition on Congress’s waiver 

of sovereign immunity. See id. at 94. The C ourt has repeatedly affirmed that principle. See, eg.. United States

v. Williams, 514 U.S. 527, 534 (1995); see also Richmond. Fredericksburg <£ Potomac R.R. Co. v. United States,

945 F.2d 765, 769 (4th Cir. 1991), cert, denied, 503 U.S. 984 (1992); Dillard v. Runyon, 928 F. Supp. 1316, 1324 

(S.D.N.Y. 1996), aff'd, 108 F 3 d 1369 (2d Cir. 1997); cf. Calhoun County v. United States, 132 F.3d 1100 (5th 

Cir. 1998) (Irwin reinterpreted the intent behind congressional waivers of sovereign immunity, but did not necessarily 

alter the nature o f the conditions on that waiver). Indeed, the Court reaffirmed this principle just months before 

issuing its decision in Irwin, see United Suites v. Dalm, 494 U.S. 596, 608 (1990), and Irwin nowhere rejects Dalm

or the cases cited therein. We therefore do not read Irwin to imply that the statute of limitations in a suit against 

the United States is waivable, either as an affirmative defense or at the discretion of an executive officer. See Bath

14
III. Administrative Settlements

A. Authority fo r Administrative Settlements

ECOA does not expressly address the administrative settlement of ECOA claims 

against federal agency creditors. This Office has previously opined that the Secretary of Agriculture may award monetary relief, attorney’s fees, and costs in 

administrative settlements of ECOA discrimination 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 were appropriated. USDA Opinion at 2. “ Consistent with this requirement, appropriations 

law provides that agencies have authority to provide for monetary relief in a voluntary settlement of a discrimination claim only if the agency would be subject 

to such relief in a court action regarding such discrimination brought by the 

aggrieved person.” Id. (footnote omitted). The Comptroller General has applied 

the same principle in evaluating agency authority to settle claims under Title VII 

of the Civil Rights Act of 1964, 42 U.S.C. §§2000e to 2000e-17 (1994 & Supp. 

I 1995), and the Age Discrimination in Employment Act of 1967, 29 U.S.C.A. 

§§621-634 (West 1985 & Supp. Ill 1997). The Comptroller General ruled that 

an agency may provide back pay or attorney’s fees only where such monetary 

relief would be available in a court proceeding on the claim. 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 

of discrimination 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 

investigate and provide appropriate remedies for ECOA claims filed against 

USDA. The FTC authorized USDA to investigate ECOA complaints regarding 

USDA lending programs in a letter of understanding, see FTC Letter, and told 

us that it orally advised USDA that USDA may provide appropriate remedies 

for valid claims prior to litigation.

B. Waiver o f Statute of Limitations

The same prohibition that applies to waiving the statute of limitations in litigation would apply to waiving the statute in any pre-litigation, administrative settlement of an ECOA claim at USDA. As our 1994 opinion explained, USDA’s 

authority to use existing appropriations to pay administrative ECOA claims

Iron Works Corp v United Stales, 20 F 3d 1567, 1572 n2 (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 circumstances ” )

Statute o f Limitations and Settlement o f Equal Credit Opportunity Act Discrimination Claims Against

the Department o f Agriculture

15
Opinions of the Office o f Legal Counsel in Volume 22

depends upon the existence of a viable civil action that could be brought by the 

aggrieved claimant. See USDA Opinion at 1-2. A court can award damages 

against the United States only where there has been a waiver of sovereign immunity. ECOA’s waiver of sovereign immunity is valid only where a claim is filed 

before the expiration of the limitations period. Thus, if the statute of limitations 

has expired, a court cannot award damages on that claim, and the agency cannot 

rely on the existence of a viable ECOA claim as a basis for expending appropriated funds to pay compensatory damages as part of an administrative settlement.

C. Applicability o f 31 U.S.C. §3702

You have asked us to consider how the provisions of 31 U.S.C. §3702, which 

governs the settlement of claims against the United States, apply to the settlement 

of ECOA claims. Prior to 1996, § 3702 authorized the General Accounting Office 

(“ GAO” ) to settle all claims against the United States “ except as provided in 

. . . another law.” 31 U.S.C. §3702 (1994 & Supp. Ill 1997).4 A 1996 amendment to § 3702 transferred the settlement authority to various executive agencies, 

including the Office of Personnel Management, the Secretary of Defense, and the 

Office of Management and Budget. See 31 U.S.C.A. § 3702(a) (West 1983 & 

Supp. Ill 1997).

The term “ settle” in §3702 does not mean “ compromise,” but rather refers 

to an administrative determination of the amount of money (if any) due a claimant. 

See 3 Principles of Federal Appropriations Law 12-9 (2d ed. 1992) (citing Illinois

Surety Co. v. United States ex rel. Peeler, 240 U.S. 214, 219-21 (1916)); State

v. Bowsher, 734 F. Supp. 525, 530 n.4 (D.D.C. 1990). Claims presented for settlement under § 3702 must be received within six years from the date on which 

the claim arose, “ except as provided in this chapter or another law.” 31 U.S.C. 

§ 3702(b)(1)(A).

You have asked us to consider in particular whether § 3702(b) would allow 

USDA to include compensatory damages in settlements of ECOA claims filed 

within six years of the accrual of the claim, even if ECOA’s statute of limitations 

had run and a court could no longer award such damages. We have concluded, 

first, that § 3702 would apply only to those ECOA claims filed with USDA within 

the two-year statute of limitations in ECOA. Second, we have concluded that 

§3702 provides no authority to pay a claim if funds have not otherwise been 

appropriated. USDA has informed us that it does not have appropriations authority 

to pay compensatory damages other than the authority that exists when a court 

could award such damages in a civil action. Thus, even if the appropriate statute

4 As previously noted, ECOA vests the FTC with administrative enforcement responsibility not specifically committed to another federal agency, see 15 U.SC § 1691c(c), but does not expressly address the administrative settlement of ECOA claims against federal agency creditors. For the purposes of this opinion, we assume without deciding 

that neither ECOA nor the Federal Trade Commission Act provides for the settlement of claims against federal 

agency creditors within the meaning of § 3702(a), and that the provisions of §3702 would apply to administrative 

settlements of these claims.

16
of limitations for an administrative claim under § 3702 were six years instead of 

two years, USDA could not pay compensatory damages as part of an administrative settlement if the two-year statute of limitations 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 has considered 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 agency rather 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 years notwithstanding shorter limitation on “ actions at law” in the 

Interstate Commerce Act and the Communications Act); 57 Comp. Gen. 441, 443 

(1978) (claims for overtime compensation may be filed up to six years after the 

claim first accrued notwithstanding the two or three-year limitation 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 and liquidated damages under FLSA must be filed 

within two years of the time it first accrues, or three years if it arises out of 

a willful violation. 29 U.S.C. §255 (1994). The claimant sought overtime compensation for the six-year period that preceded his claim. The Air Force, the claimant’s employer, and the Office of Personnel Management ( “ OPM” ) argued that 

FLSA’s two or three-year limitations period, rather than the six-year period in 

§ 3702(b), should govern the claim. 73 Comp. Gen. at 160. In ruling against the 

claimant, GAO cited cases holding that when a statute creates a right that did 

not exist at common law and limits the time to enforce it, the lapse of time not 

only bars the remedy but extinguishes the underlying rights and liabilities of the 

parties. 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.), cert, denied, 434 U.S. 940 (1977) 

(cited in 73 Comp. Gen. at 161).6 “ Accordingly, a time limitation imposed on 

a statutorily created judicial cause of action will apply to administrative proceedings to adjudicate the same claims absent a specific provision to the conStatute o f Limitations and Settlement o f Equal Credit Opportunity Act Discrimination Claims Against

the Department o f Agriculture

5 Although the opinions and legal interpretation of the GAO and the Comptroller General often provide helpful 

guidance on appropriations matters and related issues, they are not binding upon departments, agencies, or officers 

of the executive branch See Bowsher v. Synar, 478 U.S 714, 727-32 (1986).

6 OPM. which now has the authonty to settle claims involving leave and compensation of federal civilian employees 

under § 3702(a)(2), informed us that it has continued to apply the FLSA statute of limitations to FLSA claims filed 

against federal agencies.

17
Opinions of the Office o f Legal Counsel in Volume 22

trary.” 73 Comp. Gen. at 161. Because FLSA contained no provision indicating 

that a different limitations period should apply to administrative claims, GAO 

determined that the two or three-year statute of limitations 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 

was warranted because we believe that, in light of subsequent congressional 

action, GAO’s 1994 interpretation should now govern.7 Following the GAO decision announcing that it would apply the two or three-year limitations period to 

FLSA claims, Congress enacted a grandfather provision to except those FLSA 

claimants who might have relied on the earlier GAO interpretation, but Congress 

did not amend the statute to alter the prospective application of the two or threeyear limitations period. Under section 640 of the 1995 Treasury, Postal Service 

and General Government Appropriations Act, Congress directed GAO to apply 

a six-year statute of limitations to all FLSA claims filed before June 30, 1994; 

significantly, it did not alter the effect of 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 

other occasions. In 1995, it amended section 640 by excluding from its coverage 

claims in which an employee received any compensation for overtime hours 

worked during the period covered by the claim, or claims for compensation for 

time spent commuting between an employee’s residence and duty station. 

Treasury, Postal Service, and General Government Appropriations Act, 1996, Pub. 

L. No. 104-52, 109 Stat. 468, 468—69 (1995). Congress also transferred GAO’s 

functions 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 deemed necessary. See Legislative Branch Appropriations 

Act, 1996, Pub. L. No. 104-53, §211, 109 Stat. 514, 535 (1995). Finally, in 1996, 

Congress amended the text of § 3702 itself, transferring the responsibility for settling claims to various executive branch agencies, including the Department of 

Defense and OPM. General Accounting Office Act of 1996, Pub. L. No. 104- 

316, §202(n), 110 Stat. 3826, 3843—44. In none of these amendments did Congress alter the GAO’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 specific 

adjustments to the statutory scheme in light of the GAO interpretation and left 

the agency’s interpretation undisturbed. See generally CFTC v. Schor, 478 U.S. 

833, 846 (1986). The legislative record is not limited to instances in which Congress revisited the statute and abstained from overturning the administrative 

construction. Although such action provides relevant, albeit uncertain, evidence

7 W e note that one district court has held that the two or three-year limitation in FLSA applies to both administrative and judicial claims The court further stated that while it was aware that GAO had applied a six-year limitation 

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).

18
of legislative intent, see generally United States v. Wells, 519 U.S. 482, 494 (1997) 

(finding legislative silence inconclusive because Congress has not spoken directly 

to the interpretive 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 question by 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, 519 U.S. at 494. While at one 

time, § 3702 may have been reasonably subject to conflicting interpretations, the 

statute cannot be divorced from the subsequent— and directly relevant—congressional action, which now forms 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 administrative settlements of ECOA claims.

As noted earlier, ECOA does not expressly address administrative claims against 

federal agency creditors, and its limitation provision does not specifically except 

administrative claims. Section 1691e establishes civil liability for any actual damages sustained by an applicant. 15 U.S.C. § 1691e(a). That section then provides 

that “ [a]ny action under [§ 169le] may be brought in the appropriate United States 

district court without regard to the amount in controversy, or in any other court 

of competent jurisdiction.” Id. § 1691e(f).

The language of ECOA’s limitation provision is not as broad as that of the 

limitations provision in FLSA. The heading of § 1691e(f) is “ Jurisdiction of 

courts; time for maintenance of action; exceptions,” and the first sentence of subsection (f) authorizes bringing actions in an appropriate court. Id. The word 

“ court” does not appear in FLSA’s limitation provision. See 29 U.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 years after the cause of action accrued, and every such 

action shall be forever barred unless commenced within two years after the cause 

of action accrued . . . .” ).

Based on these differences in text, the argument that § 1691e(f) of ECOA should 

be limited to judicial causes of action is stronger than that regarding § 255 of 

FLSA. There is nothing in ECOA’s legislative history, however, to suggest that 

Congress intended to grant applicants with claims against federal agency creditors 

a different and longer limitations period than that available to applicants of private 

creditors. Moreover, ECOA’s limitation provision is included in the same section 

as the provision that establishes the right to compensatory damages, and the limitaStatute o f Limitations and Settlement o f Equal Credit Opportunity Act Discrimination Claims Against

the Department o f Agriculture

8A 1951 opinion of the Attorney General concluded that a statute of limitations for suits brought against the 

Commodity Credit Corporation did not bar administrative payment of claims filed with the agency after the expiration 

of that limitations period. Commodity Credit Corporation, Payment o f Claims Barred by Statute o f Limitations, 41 

Op Att’y Gen. 80 (1951) The 1951 opinion predates GAO’s announcement of its revised interpretation of §3702, 

and, more importantly, Congress’s response to that revised interpretation The 1951 opinion therefore does not constitute precedent that counsels a different result in this matter

19
Opinions o f the Office o f Legal Counsel in Volume 22

tion provision does not specifically except administrative claims from its provisions. See 15 U.S.C. § 1691e(a), (f). Accordingly, we conclude that ECOA’s 

statute of limitations 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 expend appropriations to pay claims in the absence of an ECOA claim that 

could be filed in court, so long 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 statute does not provide 

an independent basis of authority for paying such claims. Rather, in order for 

payment of the claim to be lawful, there must be independent appropriations 

authority to pay the claim. Under § 3702(d), claims that may merit relief, but 

that cannot be “ adjusted . . . using an existing 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 paid from either 

a pre-existing appropriations account for the year in which the claim accrued or, 

if such an account is not available, an account for the current year for the same 

object and purpose. See id. § 3702(d); 31 U.S.C. §§1552, 1553 ( 1 9 9 4 ) 9 Thus, 

it is evident from the text of § 3702 that it provides no basis for paying any claims 

for which there is no independent appropriations authority, which would include 

ECOA claims involving compensatory damages or other relief that 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 with OPM or the relevant agency within the statute of limitations, regardless of when or whether such claim is filed with a court. If this practice properly 

applied to ECOA claims, USDA could settle and pay any claims that were filed 

with USDA within the applicable two-year statute of limitations. However, OPM 

has informed us that the claims that it settles under § 3702 are claims for which 

there is an existing appropriation, such as claims relating to back pay, Uving 

expenses, overtime or holiday pay, or cost of living adjustments. While § 3702 

provides the authority for OPM or an agency to examine and settle those claims, 

the authority to pay out funds to claimants arises from the underlying appropriation for overtime or living expenses. If benefits are due, OPM has explained to 

us, it directs the relevant agency to pay the claimant the administrative benefits 

to which he or she would have been entitled. There is no award of compensatory

9 Under § 1552 of title 31, agencies are required to keep accounts open on fixed appropriations for five years 

In settling a claim under §3702 that accrued within five years, OPM explained that »t would direct the relevant 

agency to pay the claim from the money remaining in its account for the relevant appropriation for the relevant 

year. If no funds remained in the account, or the claim accrued more than five years earlier (and the appropriations 

account has been closed), 31 U .SC . § 1553 provides that any obligation that would have been properly charged 

to the closed appropriation account “ may be charged to any current appropriation account of the agency available 

for the same purpose ” Id. § 1553(b)(1).

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damages. The authority to pay compensatory damages for an ECOA claim, in 

contrast, derives from the waiver of sovereign immunity in ECOA and is 

dependent upon the fact that 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 pay 

compensatory 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 current appropriation for the same purpose is in accord 

with our earlier conclusion that compensatory damages 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 circumstances 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 consider whether a court might hold the United 

States estopped from raising the statute of limitations as a defense 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 plaintiff is pursuing an alternative means of obtaining relief that is not a condition precedent to bringing suit 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 period for filing 

EEOC claim during grievance-arbitration proceedings; collective bargaining rights 

are independent of those conferred by Title VII); Johnson v. Railway Express

Agency, 421 U.S. 454 (1975) (statute of limitations for claims brought under 42 

U.S.C. § 1981 not tolled during processing of complaint under Title VII; § 1981 

offers independent avenue of relief). While pursuit of mandatory administrative 

remedies can delay the start or running of a statute of limitations, pursuit of remedies that are merely permissive does not toll a limitations period. Spannaus v. 

U.S. D ep’t o f Justice, 824 F.2d 52, 56-57, 60-61 (D.C. Cir. 1987); Conley v. 

International Brotherhood o f Electrical Workers, Local 639, 810 F.2d 913 (9th 

Cir. 1987) (filing of unfair labor practice charge with National Labor Relations 

Board does not toll limitations period applicable to lawsuit against union based 

on the charge; NLRB action was merely optional, though parallel, avenue of 

relief). An administrative procedure is “ permissive” if its pursuit is not a preStature o f Limitations and Settlement o f Equal Credit Opportunity Act Discrimination Claims Against

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condition 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 ECOA limitations period 

applicable to this lawsuit.

It appears that USDA’s administrative process is a parallel, voluntary procedure. 

ECOA does not require an aggrieved applicant to file an administrative complaint 

against a government creditor before filing suit in court. Nor has the FTC, which 

has administrative enforcement responsibility for claims against the USDA, 

indicated in its regulations that exhaustion of an administrative process is required.

USDA has suggested that 7 U.S.C. § 6912(e) (1994) may require an ECOA 

claimant to exhaust administrative procedures before filing suit against the Secretary or the Department of Agriculture, and, accordingly, that the statute of limitations should be tolled pending resolution of the administrative process. Enacted 

in 1994, § 6912(e) states:

Notwithstanding any other provision of law, a person shall exhaust 

all administrative appeal procedures established by the Secretary 

or required by law before 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 of USDA programs and facilities. 7 C.F.R. pt. 15, subpt. B (1997). Under 

§ 15.52(b) of those regulations, a person “ may” file a written complaint of 

discrimination with the Office of Advocacy and Enterprise. 7 C.F.R. § 15.52(b). 

The complaint procedure in § 15.52 is not required 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 before bringing 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 a complaint regarding discrimination in USDA’s 

administration of its programs. The premise of an ECOA claim is that there has 

been a final agency determination on the underlying decision regarding the loan 

or benefit. Significantly, the decisions applying § 6912(e) to date all have involved

10 Because this provision was not enacted until October 1994, it provides no grounds for tolling the statute of 

limitations on claims that accrued before October o f 1992.

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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 appeal deduction of salvage value and market price calculation in 

indemnity to Risk Management Agency); In re Cottrell, 213 B.R. 33 (M.D. Ala. 

1997) (exhaustion applies to Rural Housing 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 to give former owner 

preference in foreclosure sale where he could have appealed to National Appeals 

Division); Gleichman v. USDA, 896 F. Supp. 42 (D. Me. 1995) (plaintiffs must 

appeal suspension of participation in Rural Housing Service programs to Administrative Law Judge as provided in 7 C.F.R. §3017.515 (1995)). We have found 

no decision that does not involve implementation of a USDA program.

We note that if § 6912(e) were found to apply to complaints under § 15.52, 

it would bar any plaintiff who has filed an administrative complaint from bringing 

suit under ECOA in the district court until USDA takes final action on the complaint. Because § 6912(e) places no time limits on the procedures established by 

the Secretary, moreover, plaintiffs could be barred from court for an indeterminate 

period of time. While we have found nothing in the legislative history of § 6 9 12(e) 

that elaborates on its intended purpose, it seems unlikely that Congress intended 

such a result. The better interpretation, we believe, is that §6 9 12(e) applies to 

administrative procedures related to statutes or programs administered by USDA. 

Accordingly, § 15.52 is a permissive procedure, and filing an administrative complaint would not toll the statute of limitations.

B. Equitable Tolling & Equitable Estoppel

We next consider the application of equitable principles to these claims. Courts 

have attempted to distinguish the doctrine of equitable tolling from that of equitable estoppel by noting that equitable tolling principally “ focuses on the plaintiffs excusable ignorance of the limitations period” and the “ lack of prejudice 

to the defendant” while equitable estoppel “ usually focuses on the 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 held that “ the same rebuttable presumption of equitable tolling applicable 

to suits against private defendants . . . applfies] to suits against the United 

States.” Id. at 95-96. However, “ [f]ederal courts have typically extended equitable relief only sparingly” in suits against private parties, and “ it is evident that

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no more favorable tolling doctrine may be employed against the Government than 

is employed in suits between private litigants.” Id. at 96. In Irwin, the Court 

observed that equitable tolling has been found where “ the claimant has actively 

pursued his judicial remedies by filing a defective pleading during the statutory 

period, or where the complainant has been induced 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 to exercise 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 of limitations, and consider whether there is “ good reason to believe that 

Congress did not want the equitable tolling doctrine to apply in a suit against 

the Government.” United States v. Brockamp, 519 U.S. 347, 347 (1997). In 

Broclcamp, the Court concluded that Congress did not intend for equitable tolling 

to apply to the time and related amount limitations for filing tax refund claims. 

The Court noted that “ [ojrdinarily limitations statutes use fairly simple language, 

which one can often plausibly read as containing an implied ’equitable tolling’ 

exception.” Id. at 350. The limitations provision at issue in Brockamp, 26 U.S.C. 

§6511 was quite different. It set forth its time limitations “ in a highly detailed 

technical manner” and imposed substantive limits on the amount recovered that 

were related to the time limitations. Id. In addition, the statute contained exceptions with special time limit rules for six types of claims, none of which addressed 

equitable tolling. Reading an implied equitable tolling provision into that statute, 

the Court observed, would work “ linguistic havoc.” Id. at 352. Moreover, tax 

law is not “ normally characterized 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 the occurrence of the violation, except that—

(1) whenever any agency having responsibility for administrative enforcement under section 1691c of this title commences an enforcement proceeding within two years from 

the date of the occurrence of the violation,

(2) whenever the Attorney General commences a civil action 

under this section within two years from the date of the 

occurrence of the violation,

then any applicant who has been a victim of the discrimination 

which is the subject of such proceeding or civil action may bring

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an action under this section not 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 in Title VII, to which the Court found equitable tolling applied in Irwin, 

than it is to the statute at issue in Brockamp. Like Title VII, moreover, ECOA 

is a remedial statute amenable to exceptions for individualized equities. Section 

1691e(f) does contain explicit exceptions to the limitation period. But the exceptions in ECOA are not as numerous or as intricate as those in the provision in 

Brockamp'. In addition, the exceptions in ECOA extend the limitations period to 

allow a plaintiff who becomes aware of discrimination after the government commences enforcement proceedings to bring an action. This purpose is not inconsistent with applying equitable tolling to the limitation period. We therefore conclude that ECOA’s statute of limitations is, in appropriate circumstances, subject 

to the doctrine of equitable tolling.

b. Is Equitable Tolling Warranted fo r these Claims?

The application of the equitable tolling doctrine depends on the facts of each 

case. “ The Supreme 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 inadequate notice, . . . where a motion for 

appointment of counsel is pending and equity would justify tolling the statutory 

period until the motion is acted upon, . . . where the court has led the plaintiff 

to believe that she had done everything required of h er,. . . [or] where affirmative 

misconduct on the part of a defendant lulled the plaintiff into inaction.’ ” Mondy

v. Secretary of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988) (quoting Baldwin,

466 U.S. at 151 (citations omitted)). Courts .have found notice inadequate, where 

an agency fails to provide a claimant with notice required by statute. See Coles

v. Penny, 531 F.2d 609, 614-17 (D.C. Cir. 1976) (statute of limitations tolled 

where EEOC failed to provide notice of right to sue as required by statute) (interpreting Gates v. Georgia-Pacific Corpr, 492 F.2d 292 (9th Cir. 1974) (tolling 

statute of limitations where EEOC failed to provide notice of right to sue required 

by its regulations)). In addition, failure to meet a statutory deadline “ ‘may be 

excused if it is the result of justifiable reliance on the advice of a government 

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.courts have considered is whether the plaintiff was represented by an 

attorney. Courts are less likely to find equitable tolling if the plaintiff has legal 

representation. See, e.g., Kelley v. NLRB, 79 F.3d 1238 (1st Cir. 1996) (no tolling 

where NLRB employee erroneously informed attorney that NLRB would serve

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defendant with charges because represented plaintiffs generally deemed to have 

constructive knowledge of regulatory requirements).

USDA has suggested, in particular, that the D.C. Circuit’s decision in Bull S.A.

might support an equitable tolling argument for the ECOA claimants. In Bull S.A.,

the court held that a corporation justifiably relied on a sealed Certificate of 

Renewal for its trademark which stated that the renewal' would last twenty years 

from May 15, 1972. In fact, the renewal should have run from May 15, 1971. 

The corporation missed the 1991 renewal deadline but applied within the proper 

time had the renewal in fact expired in 1992. Bull S.A., 55 F.3d at 682. In finding 

that 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 the Commissioner, that certified a renewal lasting until 

May 15, 1992. Once in receipt of this document, and, . . . absent any circumstances that would alert Bull to the error, Bull was entitled to rely on its 

validity.” Id.

As a general matter, USDA has suggested that claimants may be able to argue 

that they justifiably relied on the conduct of USDA officials to conclude that filing 

an administrative complaint tolls ECOA’s statute of limitations. The conduct in 

question includes failing to alert claimants of their right to pursue immediate relief 

under ECOA; inviting claimants to submit claims for compensatory damages upon 

a finding of discrimination; and engaging in settlement negotiations regarding 

damages. Because there is no legal requirement that the government provide 

potential ECOA plaintiffs with notice of the right to file a civil action, ECOA 

claimants will have difficulty asserting inadequate notice as a grounds for equitable tolling. Compare Coles, 531 F.2d at 614-17. Absent a more specific government statement that the filing of an administrative complaint tolled the limitations 

period on an ECOA civil action, it is unlikely that a court would find such conduct 

sufficient to apply equitable tolling. However, the application of the 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, it is a means of precluding a litigant from asserting an otherwise available 

claim or defense against a 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 the possibility that equitable estoppel 

may lie against the United States, “ it is well settled that the Government 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 

Court has reversed every finding of equitable estoppel requiring the payment of 

money by the United States that it has reviewed. See OPM v. Richmond, 496

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U.S. 414, 427 (1990); Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947). 

Thus, “ despite the doctrine’s flexibility in disputes between private parties, its 

application to the government must be rigid and sparing.” ATC, 860 F.2d at 1111.

A party seeking to assert estoppel against the government must do more than 

establish the traditional private law elements of the doctrine, which are “ ‘false 

representation, a purpose to invite action by the party to whom the representation 

was made, ignorance of the true facts by that party, and reliance.’ ” See id. The 

litigant must also demonstrate that the government engaged in some sort of 

“ affirmative misconduct,” OPM, 496 U.S. at 421, and that there will be no 

“ 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 the 

United States. Because “ parties dealing with the government ‘are expected to 

know the law and may not rely on the conduct of Government agents contrary 

to law,’ ” id. at 1111 (quoting Heckler, 467 U.S. at 63), “ there is no grave injustice in holding parties to a reasonable knowledge of the law.” Id. at 1112.

Courts require special rigor in examining claims that would estop the government so as to entitle claimants to monetary payments not otherwise permitted 

by law. This concern is grounded in the principle of separation of powers. For 

“ [i]f agents of the Executive were able, by their unauthorized oral or written 

statements to citizens, to obligate the Treasury for the payment of funds, the control over public funds that the [Appropriations] Clause reposes in Congress in 

effect could be transferred to the Executive.” OPM, 496 U.S. at 428. Moreover, 

“ Congress has always reserved to itself the power to address claims of the very 

type presented by [a claimant arguing estoppel], those founded not on any statutory authority, but upon the claim that ‘the equities and circumstances of a case 

create a moral obligation on the part of the Government to extend relief to an 

individual.’ ” Id. at 431 (referring to congressional reference cases and private 

legislation procedures).

A plaintiff seeking to estop the government from asserting the statute of limitations in these cases might make two arguments. First, claimants might argue that 

USDA’s actions led them to believe its administrative process tolled the running 

of the statute of limitations on a civil action. Second, plaintiffs might argue that 

USDA told them that it would settle their claims in an administrative process, 

or led them to believe that relief would be available in the administrative process 

even if the statute of limitations ran on a judicial action. This belief, in turn, 

may have lulled claimants into believing that they would be compensated by 

USDA and that it therefore was unnecessary to seek relief in court.

Neither of these arguments is likely to succeed in the absence of affirmative 

misconduct by the government. To qualify as affirmative misconduct, a government official’s conduct must amount to “ more than mere negligence, delay, inaction, or failure to follow an internal agency guideline.” Ingalls Shipbuilding, Inc.

v. Department of Labor, 976 F.2d 934, 938 (5th Cir. 1992) (quoting Mangaroo

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v. Nelson, 864 F.2d 1202, 1204—05 (5th Cir. 1989)). Courts look for evidence 

that an official’s misstatement was made with “ knowledge of its falsity or with 

intent to mislead.” United States v. Marine Shale Processors, 81 F.3d 1329, 1350 

(5th Cir. 1996). We are unaware of any allegation that any USDA official knowingly misled these claimants. At most, it appears that any statements or impressions were based on the official’s mistaken interpretation of the law. Courts have 

been unwilling to estop the government in circumstances where individuals relied 

on advice provided by government officials who would have been expected to 

have the relevant knowledge and authority. See OPM, 496 U.S. at 420 (employee’s 

erroneous advice that income 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 was insured does not estop 

government from denying benefits on crops excluded from coverage by statute); 

Ingalls, 976 F.2d at 937 (government cannot be estopped from assessing penalties 

for a delay in payment even though a deputy commissioner sent plaintiff a letter 

excusing any delay in payment); ATP, 860 F.2d at 1111-12 (SBA’s assurance 

that it would guarantee payments of section 8(a) borrower was unauthorized and 

therefore cannot estop government). To our knowledge, the alleged government 

conduct at issue here is similar to that deemed insufficient to establish estoppel 

in these cases. However, the application of equitable estoppel to a specific case 

will depend on the facts present in that case.

V. Conclusion

ECOA’s statute of limitations applies to both administrative and litigative settlements of ECOA claims, and it may not be waived by the executive branch. 

Because USDA’s authority to pay 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 3702 of title 31 does not 

provide an independent basis of authority for the payment of administrative claims 

filed after expiration of the ECOA statute of limitations. As for tolling, filing 

an administrative claim does not toll the statute of limitations on a civil action. 

While ECOA is subject to claims of equitable tolling or equitable estoppel in 

appropriate circumstances, courts have rarely applied either doctrine against the 

United States.

DAWN JOHNSEN 

Acting Assistant Attorney General

Office o f Legal Counsel

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