Indian tribe’s failure to present timely claims to federal contracting officer does not count as “extraordinary circumstance” for purposes of equitable tolling

In this case, an Indian tribe (Tribe) pursued claims under the Contracts Dispute Act of 1978 that were barred by a six-year statute of limitations.  During the statute of limitations period, another tribe had filed a putative class action suit for similar claims, and after nearly two years, class certification had been denied.  The Tribe sought equitable tolling for the period this putative class was pending.  The District Court denied the equitable tolling.  The D.C. Circuit affirmed.  The U.S. Supreme Court granted certiorari to resolve a circuit split on this issue.  In a unanimous vote, the Court affirmed the D.C. Circuit’s judgment.  To be eligible for equitable tolling, a litigant must establish two elements: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.”  The Tribe argued that the putative class action suit, and the subsequent denial of class certification, counted as an “extraordinary circumstance” for the purposes of equitable tolling.  The Court held that since the Tribe could not have been a member of the putative class in the action filed by the other tribe, the Tribe’s decision to not present its claims within the six-year period was a tactical mistake, not an “extraordinary circumstance.”  Justice Alito delivered the opinion of the Court.  [Menominee Indian Tribe of Wisconsin v. United States, (U.S. 2016) 16 C.D.O.S. 889]

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