Category Archives: Equitable Tolling


Menominee Tribe v. United States: Equitable Tolling (01/25/16)

Menominee Indian Tribe of Wisconsin v. United States

Should the Court of Appeal’s decision that equitable tolling does not apply to the presentment of the petitioner’s claims be affirmed?

Argued: 12/1/15

Decision Date: 01/25/16

Decision Record: 9-0; yes

Justices in Favor: John Roberts (RC*), Samuel Alito (R), Anthony Kennedy (LC), Ruth Bader Ginsburg (L), Stephen Breyer (L), Sonia Sotomayor (L), Elena Kagan (LC), Clarence Thomas (R)

Justices Dissenting: None


Effect of the Decision:

Equitable tolling cannot be used to reserve contract claims that are not timely presented within the statute of limitations.


In Favor:

Representing the United States, attorney Ilana Eisenstein argued, “The Tribe made a strategic calculation here to allow the six-year CDA statute of limitations to pass, because it wanted to monitor the litigation by other tribes, rather than file and pursue its own action. The miscalculation that it made about whether the clear deadline could be extended by class action tolling, that was a routine litigation mistake, the kind that is far from the sort of extraordinary circumstance that could warrant equitable relief.

Nor did that miscalculation prevent the Tribe from filing earlier.

To the extent that there was uncertainty as to whether it was a member of the Cherokee Nation class, and whether presentment was a jurisdictional bar to that class membership, the prudent course, and any reasonably diligent litigant would have filed under the clear deadline, rather than wait for the uncertain application of tolling and the potential forfeiture of its claims.”


In the opposing side of the presented question, the Menominee Indian Tribe of Wisconsin’s attorney, Geoffrey D. Strommer stated, “The facts in this case are very complex, but the legal question that is presented to you today is relatively straightforward to state.

And the legal question is whether or not an individual or an entity that reasonably relies on class-action tolling can, if tolling is found to be ineffective at a later date, then rely on the same facts to argue that equitable tolling under Holland should apply. In the Irwin case, this Court specifically cross-referenced American Pipe as an example of a defective pleading that could satisfy equitable tolling. American Pipe obviously being a class-action tolling rule. We read that cross-reference as a suggestion that, under the right circumstances, if somebody reasonably relies on class-action tolling facts that ultimately prove to be ineffective, that that individual has the ability to ask the Court to find that equitable tolling should apply. If there is such a case, the facts of this case really should satisfy this test. The test is set forth in the Holland case. Due diligence and extraordinary circumstances are the two prongs that have to be satisfied.”


In the majority opinion paper, written by Justice Alito, he wrote: “The Tribe argues that diligence and extraordinary circumstances should be considered together as factors in a unitary test, and it faults the Court of Appeals for declining to consider the Tribe’s diligence in connection with its finding that no extraordinary circumstances existed. But this Court has expressly characterized these two components as “elements,” not merely factors of indeterminate or commensurable weight, Pace v. DiGuglielmo, 544 U. S. 408, 418, and has treated them as such in practice, see Lawrence v. Florida, 549 U. S. 327, 336–337. The Tribe also objects to the Court of Appeals’ interpretation of the “extraordinary circumstances” prong as requiring the showing of an “external obstacle” to timely filing. This Court reaffirms that this prong is met only where the circumstances that caused a litigant’s delay are both extraordinary and beyond its control.

None of the Tribe’s excuses satisfy the “extraordinary circumstances” prong of the test. The Tribe had unilateral authority to present its claims in a timely manner. Its claimed obstacles, namely, a mistaken reliance on a putative class action and a belief that presentment was futile, were not outside the Tribe’s control. And the significant risk and expense associated with presenting and litigating its claims are far from extraordinary. Finally, the special relationship between the United States and Indian tribes, as articulated in the ISDA, does not override clear statutory language.”

My Opinion:

In this case, I concur with the Supreme Court’s decision. The Menominee Indian Tribe of Wisconsin weakly argued that they were aware of their situation, however they did not think bringing the case to court would make a difference, and therefore their statute of limitation did not begin. I strongly disagree with this because the statute of limitation clearly states that it begins to run the moment you are aware of the situation. The Menominee Tribe became cognizant at the time of the contract signing, meaning their time was already running. Merely believing that your case would not have an impact in court does not conflict or have anything to do with the statute. The decision of whether or not they wanted to take their case to court, or not, was theirs. The Menominee Indian Tribe were still aware of their case nevertheless.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right