Courthouse Steps Decision: Wilkins v. United States

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On March 28, 2023, the Supreme Court handed down its decision in Wilkins v. United States. The case involves a suit by neighbors to quiet title over a road easement that the United States interprets as allowing for public use. The United States argued the claim was jurisdictionally barred by the the Federal Quiet Title Act’s 12-year time limit. 

The Court held that the Act’s statute of limitations is a nonjurisdictional claims-processing rule because a procedural requirement is only jurisdictional if Congress clearly states that it is. Justice Clarence Thomas, joined by Chief Justice Roberts and Justice Alito, dissented and would have held the time-bar jurisdictional because it is a waiver of sovereign immunity.

Jeffrey W. McCoy, attorney at the Pacific Legal Foundation, joined us for a courthouse steps decision teleforum moderated by Adam Griffin.


  • Jeffrey McCoy, Attorney, Pacific Legal Foundation
  • Moderator: Adam Griffin, Law Clerk, US District Courts


As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript



Jack Capizzi:  Hello and welcome to today’s Federalist Society virtual event. Today, June 23, 2023, we are excited to present a Courthouse Steps Decision recap in the case of Wilkins v. United States. My name is Jack Capizzi, and I’m an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the speakers on today’s call. After our speakers have given their remarks, there will be an opportunity to take questions from the audience. If you do have a question at any point, please type it into the Q&A function at the bottom of your screen, and we’ll handle your questions as we can towards the end of today’s program.


With that, I’ll turn it over to our moderator today. Today, the program is moderated by Adam Griffin, who is a member of The Federalist Society’s Environmental Rights and Property Rights Practice Group Executive Committee. With that, thank you all for being with us. Adam, over to you.


Adam Griffin:  Thanks so much, Jack, and thank you to The Federalist Society for hosting this Teleforum. Today, we’re here to discuss the Supreme Court’s decision in Wilkins v. United States. The case was decided on March 28, 2023. The case involves a suit by neighbors to quiet title over a road easement the United State interprets as allowing for public use. The United State argued that the litigants’ claim under the Quiet Title Act, asking to settle their rights to whether or not this road easement was open to public use or only private use -- the United States argued that claim was jurisdictionally barred by the Federal Quiet Title Act’s 12-year time limit.


The Court held that the Act’s statute of limitations is nonjurisdictional claim-processing rule. There was a dissent by Justice Clarence Thomas joined by Chief Justice Roberts and Justice Alito, who would have held that the time-bar was jurisdictional because it was a waiver of sovereign immunity.


Here to discuss the case is Jeffrey McCoy, attorney at the Pacific Legal Foundation. Mr. McCoy was the lead litigator on the case and argued the case before the Supreme Court. He joined PLF in 2017. Since then, he’s focused his litigation on separation of powers and private property rights. And he also leads PLF’s coastal land rights initiative. Throughout his career, Jeff has worked at a variety of individual liberty and limited government foundations, including Mountain States Legal Foundation. Thanks so much for joining us today, Mr. McCoy. The floor is yours.


Jeff McCoy:  Thank you so much for having me. And thank you, everybody, for attending. I’ll give a brief background. Adam did a little bit, but I’ll give a brief background of the facts of the case.


I represent two neighbors, Jane Stanton and Will Wilkins. They live about an hour south of Missoula, Montana, next to the Bitterroot National Forest. They live in a very small neighborhood, and there is a road that goes across their land and their neighbors’ lands to the Bitterroot National Forest. And the government owns an easement on this land, but when this easement was negotiated by my clients’ predecessors, the -- both the language of the easement and the contemporaneous communications reflect that this was supposed to be a limited easement for the purposes of Forest Service officials and also anybody who had a Forest Service license. Mainly timber, at the time, but now there is grazing permits, which everyone agrees is allowed by the easement.


But the issue that’s come up is the public’s use of the easement. There’s a lot -- there’s been a lot of problems in the past 10 to 15 years with people speeding. It's a dirt road, so there’s been lots of use, which has led to washout of both Will and Jane’s properties. And the government has been slow or sometimes has not maintained the easement. People’s use of the easement has led to illegal hunting, people shooting guns near and at Will and Jane’s houses. Once, Will’s cat was shot by someone using it, and this has caused problems.


And so, Will and Jane went to the Forest Service and said, “Hey, one, the public isn’t allowed on this road. And also, if you are going to allow the public on the road, is there anything that you can do to ensure that they respect our rights as property owners, our quiet enjoyment of the property.” This was around right before -- some of you may be familiar with the Forest Service’s travel management plan, which began -- the Travel Management Rule began at the beginning of the century, that essentially said that the Forest Service needs to define very clearly what roads are open to the public, what roads are not. And about the time that Will went to the Forest Service with his problems, the Bitterroot National Forest was starting their travel management process. Their proposal was to close the road entirely to anybody. And there were officials that told Will, “Don’t worry about it. The travel management process is coming through.”


This process took eight years, and then after the eight years, the Forest Service switched course, opened up the road, declared it public, posted a sign that it was public. And as you can imagine, the problems continued. Will, again, tried to seek some sort of agreement with the Forest Service. The Forest Service said, “No, we can open it to whoever we want. And we don’t have any duties to ensure that people are using it reasonably.” That’s when he brought the suit.


And as Adam said, the United States moved to dismiss under the Federal Quiet Title Act’s 12-year statute of limitations, saying that their -- the court lacked jurisdiction because it was filed out of time. And because it was a motion to dismiss and because of, especially the Ninth Circuit’s rules on motions to dismiss, even jurisdictional motions to dismiss, we weren’t given an opportunity to have a hearing. We had some disputed facts over just the question of whether there was -- whether the -- the Forest Service indicated that they did specific things like posted signs that made their view clear.


I’ll go back a little bit. The Quiet Title Act’s statute of limitations starts running when someone knew or should have known of the federal government’s adverse position on a property right. And so, there was some factual disputes, but because the court ruled that it was jurisdictional, there wasn’t a hearing. Furthermore, we also think that there was some equitable estoppel arguments based on the expressions from Forest Service officials to Will that caused him to delay filing the case. But for jurisdictional rules, there are no exceptions -- no equitable exceptions.


And so, the court ruled, and this went to the Supreme Court on the question of whether or not the Federal Quiet Title Act’s statute of limitations is jurisdictional or if it’s nonjurisdictional, which would -- if it was nonjurisdictional, it would, one, shift the burden to the government to prove that it was filed out of time rather than what the district court did and said, “We had the burden, and we failed to meet that burden.” It would allow us to dispute facts, and it would also allow us to make some equitable arguments in our favor. The Ninth Circuit had held -- there was a circuit split with the Eighth Circuit holding that it was nonjurisdictional and the Ninth Circuit expressly holding that it was jurisdictional. And there was a few other circuits that held it was jurisdictional. But all of these determinations, the lower courts determined that this was jurisdictional based on one line from a previous Quiet Title Act case that said that if -- it was at the very end, the last sentence of an opinion about whether or not states were subject to the statute of limitations if they brought a Quiet Title Act case.


The Supreme Court ruled that states were subject to it, and then, they ended it by saying -- ended the opinion by saying the court wouldn’t have jurisdiction if the case was filed out of time. And some of you may be familiar. There’s an expression that the Court has recently reused and reiterated that jurisdiction is a word of many meanings, and oftentimes, they use -- the Court has used jurisdiction to mean mandatory. Sometimes, it’s just used it. But the Court has recently tried to be very strict, to use jurisdiction only to mean subject-matter jurisdiction or personal jurisdiction, only the power the courts to hear the case itself.


And so, we argued that this was an offhand comment and that the Court should assess whether or not this is jurisdictional under their standard that they’ve laid out in other cases, which is if Congress wants to make a filing rule, jurisdictional, it has to clearly state so. Some indications in the Quiet Title Act, the jurisdictional grant for the Quiet Title Act is in a different section of the U.S. Code along with several other jurisdictional grants for other cases. The statute of limitations is in its section, only relates to the Quiet Title Act. And so, we argued that, one, there was no clear statement and that no previous court case had held that the Quiet Title Act’s statute of limitations was jurisdictional. The United States in their response admitted that there was really no clear statement but argued a lot about precedent. And that was what a lot of the argument at the Supreme Court was about is what does Congress mean in these -- or what did the Court mean in its previous cases.


And at oral argument, Justice Gorsuch, for example, made a comment that courts don’t write opinions like statutes and that lower courts shouldn’t really interpret them like statutes. They shouldn’t go digging for each word and phrase. They really should just look at what the holding was. And there was never a holding about the jurisdictional nature. There was just, like I said, an offhand comment about it.


And so, the Court ruled in our case 6-3, in a decision by Justice Sotomayor, that the Quiet Title Act’s statute of limitations is nonjurisdictional. One of the key phrases she said is that courts don’t look for “holdings in hiding” and so, basically, said these offhand remarks aren’t -- are indicative of a holding that the Quiet Title Act’s statute of limitations is jurisdictional. As Adam said, Justice Thomas dissented, joined by the Chief Justice and Justice Alito. They took a much more strict view, both of previous precedent but also of waivers of sovereign immunity generally.


And I think this was the big discussion. Justice Thomas opened question by talking about sovereign immunity, and I think this was the big dispute between the dissent and the majority was about how strictly you interpret waivers of sovereign immunity, how much leeward you give to litigants. Justice Thomas took a strict view of that in saying that really courts should be very hesitant to read exceptions into any waivers of sovereign immunity. While the majority was more when there’s waivers of sovereign immunity, general rules of litigation apply.


And so, for example, in a statute of limitations context, between private litigants, statute of limitations are always affirmative defenses. They can be waived. They can be forfeited. And since Congress did not indicate that they were trying to change from this rule, this general rule, they were going to treat it like anything else. And so, that’s where, I think, the dispute came in is about waivers of sovereign immunity. For me, obviously it was my clients, and they want to agree with the majority, but also, at PLF, we sue the government for a living. And so, I’m obviously much more in favor of rules that will allow my clients to get into court.


But I do think that, especially in this context, that the waiver of sovereign immunity should be more broadly interpreted, more -- interpreted more favorably for litigants because -- well, one of the things, and Justice Alito wrote a dissent in a similar case about the statute of limitations for the Federal Tort Claims Act. But one of the differences between a Quiet Title Act case and a tort case is that you’re asking the government for money. And sovereign immunity, and sovereign immunity especially in the United States, is -- usually been about when you’re asking for money for damages. But a Quiet Title Act case doesn’t ask the government to give anything. In fact, the claim is, “I own this. You are violating my rights, and so, we want the Court to declare that I do own this, and you do not.” And so, you’re not asking the government to give anything over.


And I think -- so especially in that context, when you’re asking for a declaration of rights, that sovereign immunity shouldn’t be strictly -- a waiver of sovereign immunity should not be strictly interpreted. And in support of this, if you look at the legislative history -- and I know that Justice Gorsuch would groan that I am talking about legislative history, but when the Senate Interior Committee proposed the Quiet Title Act, they did talk about sovereign immunity because litigants were unable to bring Quiet Title Act cases because the government had not consented to be sued. But there was a phrase in there that I think reflects my view on sovereign immunity. Sovereign immunity comes from English Common Law, comes from the concept that the king can do no wrong, but the Senate said that the doctrine didn’t really apply for the Quiet Title Act cases because courts aren’t -- in the United States, courts aren’t created to protect the sovereign but instead to protect the people. The original bill was just a complete waiver of sovereign immunity. It was very short and basically said that people could sue to quiet title. There’s some negotiations with the AG’s office that eventually led to the statute of limitations.


But I still think that generally the principle that statute of limitations, especially in the context of the declaration of rights, shouldn’t be strictly interpreted, shouldn’t be jurisdictional, which would require it to be resolved -- the first question to be resolved. It would have -- it can be brought up at any time, all of the things that come along with the jurisdictional rule. But instead, these statute of limitations -- other limitations -- other waivers of sovereign immunity really should be interpreted in favor of the plaintiffs. Adam, do you have any questions for me?


Adam Griffin:  Thanks so much, Mr. McCoy. I really appreciate your presentation. And [inaudible 00:16:04] -- sorry. I thought I’d unmuted. Thank you so much for your presentation. It was great, a great summary of the case.


Our participants, if anyone has any questions, you can use the Q&A and Chat function at the bottom of your screen. And please ask away. Always happy to field any questions.


I did want to ask more poignantly why you thought the dissent was wrong. Since you take the majority position, the dissent’s position is that this was a waiver of sovereign immunity. Waivers of sovereign immunity are construed strictly. The stricter construction of the waiver of sovereign immunity is to -- you do it as a jurisdictional bar. The government here is saying this is an easement where we have a public use right. Why would -- what’s the best argument that the dissent’s logic is incorrect?


Jeff McCoy:  Yeah, and I said this a little bit, but I’ll go further into it. I think there’s a stronger argument for the dissent’s view when there is a -- when there’s money involved and especially because we have a constitutional system, and for transfers, revenue is -- Congress is in charge of revenue. And so, it would be very hard for a judge to order the United States to spend funds if Congress has not appropriated those funds. And so, normally, you see something where Congress appropriates funds for cases where there’s -- where they’ve had a waiver of sovereign immunity, but in this case, like I said, it’s just a declaration of rights. It would not cost the government anything unless they wanted to purchase the easement, and there are Forest Service rules, regulations that allow them to do that. And in fact, the Quiet Title Act itself, if the government loses a case before judgment is entered, they can go ahead and pay the plaintiff to keep what they claimed that they had in the first place.


But the actual declaration, the actual quiet title action is not about transferring of money. It’s just about declaring who owns what. I also think that there -- so in terms of whether or not you should strictly construe this as a jurisdictional bar or rather grant courts more leeway to hear cases if they think there’s equitable considerations or allow the parties themselves to agree to get to the merits, I think that that’s fair. And another thing is the Court has recognized that in quiet title actions if you dismiss on jurisdictional grounds, it doesn’t quiet title. And even Judge VanDyke at the Ninth Circuit, when we argued this, suggested that my client just put up a barrier and force the government to sue him. Now, that would raise potential civil and criminal liabilities, so I wouldn’t suggest that, but I do think that it reflects that there isn’t a quiet title action case unless there’s a declaration that says, “You own this. You own this,” rather than just, “I can’t hear the case,” which if it’s jurisdictional, that’s all that the court is saying is, “I can’t hear the case,” then the dispute’s not really resolved.


And so, I think, especially in land-use disputes, if -- and if the parties want to resolve it because it could be easier for everybody, then I don’t think that Congress intended for courts not to hear those cases, which is what a jurisdictional rule would be. And I do think that the majority -- the general attitude -- because in nearly every other quiet title action case between two private parties, a statute of limitations is not a jurisdictional bar. Defendants can waive it or forfeit it if they want. And I think, in this case, Congress was just adopting those general rules as well. They weren’t doing anything special. They were just basically saying, “We’re creating a Quiet Title Act action, which has been common in states since the Founding, and we’re just saying that you can do it against us.”


And so, while they did waive their sovereign immunity by saying you can consent to us, they weren’t necessarily saying, “Hold these rules strictly as jurisdictional rules.” Congress was really saying, “Just apply rules, general rules that you have in other cases, courts.”


Adam Griffin:  Great. And so, my final question is where does the case go from here? So this was just a motion to dismiss on a procedural question or a jurisdictional question. What’s next for the plaintiffs? Where is the case now? And where do you foresee the case heading?


Jeff McCoy:  Yeah. Well, that’s kind of the funny thing about this case is obviously my clients were very happy they won at the Supreme Court of the United States. But we’re essentially back at the beginning, and this case was filed five years ago in August. So we’ve gone through five years of litigation, and we’re essentially back at the start. But we do think we’re in a good position.


And one of the things, like I said, is there’s an open question about whether the Quiet Title Act allows for equitable estoppel. The Supreme Court has held that there’s no equitable tolling. They’re similar concepts, but they’re a little bit different. And the Court, in Wilkins, recognized that they’ve never held on what -- on whether there’s equitable estoppel. And that’s essentially if the defendant does something to induce the plaintiff to not file in time, then the statute of limitations can be waived.


And so, we do have this argument where essentially there were Forest Service officials telling Will, “Don’t worry about it. We’re closing this road. We’re not going to allow anybody on it. You don’t need to worry about it.” And then eight years later, they switched. And under the district court’s formulation, they -- he felt that we were out of time by just a few months, so if that eight-year time limit doesn’t count towards it, we think we’ll be all right.


But even the issue the -- where I said that the trial court looked at this order that was supposedly posted on the road that expressed that it was closed to the public. And so, the Forest Service argued, well, if we can close it to the public, then we can open it to the public. Of course, neither of my clients, none of their neighbors ever saw that sign, so in an evidentiary hearing, we would dispute. But it was taken as a fact that it was posted on the road. So we think, if we get an evidentiary hearing on this, that we would prevail.


But maybe also, after all of this, it’s possible that maybe the United States just wants to get to the merits of the case. And now, they can. They can say, “Don’t worry about the statute of limitations. Let’s just interpret the easement.” And if that’s the case, then that would be great because ultimately, I think, that’s why we brought it was to resolve the merits of this case. And hopefully, we’ll now have the opportunity to do that, to have a judge actually say, “This is what the deed says.”


Adam Griffin:  Great. Thank you. And then, Eric Braverman (sp) says, “Can you explain how New England law was regicidal but somehow maintained sovereign immunity?” So I think he’s basically getting to the idea that if -- in New England law, they [inaudible 00:24:16] overturned the king and that -- had a sort of more disestablished church. How is it that they maintain some kind of sovereign immunity? And then, Hamilton of The Federalist Papers along with Franklin view impeachment as sovereign accountability. The fact that there is impeachment of the president and Congress and that anyone can be impeached is somehow --maybe implies that there isn’t sovereign immunity so maybe speaking to the original understanding of sovereign immunity, the nature of it, where it comes from, and if we have it in America.


Jeff McCoy:  Yeah, and this is a question that many scholars have discussed. And it is -- it’s a good question because the concept, the whole concept of sovereign immunity is that the king can do no wrong. That is where it comes from, and clearly, the Framers wrote a Declaration of Independence laying out why the king was wrong. But what the concept was is you can’t sue the Crown or the government without its consent. And it’s just early, I think, because we follow the English Common Law system, this general concept -- although the specifics were rejected, the general concept of you can’t sue the government is -- was adopted and adopted by courts here.


However, I think that that is, in some ways, incorrect with our constitutional system because there is an established judiciary. There’s established rights. The judiciary is there to establish rights. I do think that there is a similar concept that I’ve gotten into. And I read a law review article that made this case — and I apologize; I don’t have it off the top of my head — but that said really sovereign immunity in the United States is about separation of powers and Congress’s power over the purse. And so, when you’re suing for money, then a court can’t tell a -- one branch -- another branch that you have to spend money on this. Of course, that would only apply to money, not to injunctive or declaratory relief because those are inherent powers of the judiciary and inherent judicial powers.


And so, I think, in terms of declaration of rights, I think, yeah, someone should be able to say, “You’re violating my rights, my right to free speech. Stop doing that. I want an injunction saying to stop do that.” It becomes a trickier question if you ask for damages because Congress does have to. But I think generally the concept of sovereign immunity probably shouldn’t have been carried over because it is a very specific thing to the Crown, to monarchies. In fact, even today, the way that land is owned in these monarchies, you don’t own it. The Crown owns all of the land, and you own some aspect of it.


And that’s just not how it is in here. And so, I think that the concept of sovereign immunity has been too strictly applied. And while there are similar concepts that our constitutional system would allow and would require consent of the government to sue, I don’t think it’s in all instances.


Adam Griffin:  Thanks for that, Jeff. I think this is sort of a comment, but “The philosophical basis, the king can do no wrong, is that with all branches of the government invested in the king, law making, law enforcing, and law interpreting, the latter and the king, being in the king’s court, would be the king deciding against himself as a judge, so the king can’t be a judge in his own case.” So I’m not sure if you have a thought about that.


Jeff McCoy:  No, and I think that that’s a good -- I mean, that’s one of the things. There was -- Justice Gorsuch wrote an opinion once that while certainly we’ve adopted common law principles, there was also -- the Constitution was a rejection of some of those common law principles as well. And I think the separation of powers, the clear separation of powers is where this has been. And yeah, it’s true. We don’t have the government -- we don’t have one person ruling against themselves. And I think that’s why the issue of sovereign immunity isn’t -- like I said, should not be as broadly interpreted as courts have.


Adam Griffin:  And then, Rog Candelaria said, “The west is full of USFS roads and trails, burdening private land. What will this case mean for the balance of power between ranchers and the Forest Service or the Department of the Interior?”


Jeff McCoy:  Yeah, I think this is going to make it easier for these disputes to be resolved. For those of us in the west, we are very familiar with this. And that’s another thing about how strictly you interpret the statute of limitations itself. These disputes, when there’s large swaths of land, they can go unnoticed for a long, long time. It’s that the government doesn’t use what they think they own, and even the private property doesn’t use what they think they own. And it really doesn’t become clear that there’s a dispute until something forces it.


And I think hopefully Wilkins will lead to more resolution, easier resolution of these cases so that it’s clear who owns what, that it can protect private property rights, and you don’t have the government asserting that they own something when they don’t or even asserting -- never really even asserting it but just tolling the clock so that no one can ever really do anything about it. There’s also been -- there’s lots of cases, especially with counties, in recent years, and I’ve talked to lawyers that have gone through the whole process of the trial court on who owns -- it’s a dispute between a county and the Forest Service, the county BLM. They’ve gone through the whole thing. They go on appeal, and then, some outside organization, who wants the Forest Service to own the road, comes in, files an amicus brief, raises the statute of limitations because these courts have viewed the statute of limitations as jurisdictional. It has to be answered, even though they’ve gone through -- both sides have gone through this whole process, and sometimes, they’ve even won and said, “You own this, county or private party. But yet, well, now, we have to go back and argue about the statute of limitations.”


That can’t happen now. An outside group can’t just come in, and I would hope that the Forest Service, now that this is clearly nonjurisdictional, that they’d be more willing to do it to reach the merits of cases and are -- be willing to waive the statute of limitations when it’s close because you shouldn’t have to go to a trial on whether you can even go to trial on the merits of the case.


And oftentimes, you just need to look at the deed. That’s something the courts do all the time, and it’s really never in doubt. The deeds are recorded. And so, it would be a lot easier for the government too. If they really think that their position is they own that, I think it would be better for everybody to just waive this and just resolve these disputes quickly.


Adam Griffin:  Great. Thanks so much. We’ve reached the end of our time. But I want to thank you, Mr. McCoy, for your time and for your expertise on this call. And thank you to everyone for participating in this call today. Really interesting case and look forward to hopefully seeing where it goes on the merits. So thank you so much. And Jack, turn it over to you.


Jack Capizzi:  Thank you so much, Adam. Well, yes, certainly, on behalf of The Federalist Society, I do want to offer our congratulations and thank Jeff for his valuable time and expertise today. Thanks as well to Adam for moderating and putting this program together. As always, please do keep an eye on our website and your emails for upcoming virtual events. We do welcome listener feedback by email at [email protected]. With that, thank you all so much for joining us today. We are adjourned.