Don't Reward the Government for Hiding Constitutional Violations

Federal law is full of deadlines. But in federal court, most deadlines are flexible. Courts can usually extend a deadline when there is a compelling reason to do so--a grace period known as "equitable tolling." In the rare cases where a deadline is instead inflexible and ineligible for "equitable tolling," courts are prevented from extending that deadline no matter how compelling the argument might be that an extension would be in the interests of justice. Because the consequences of an inflexible deadline are so harsh, the US Supreme Court has repeatedly held that statutory deadlines in the federal court system are presumptively flexible and subject to equitable tolling unless there is clear congressional intent to make them inflexible. A federal statute sets a 60- day deadline to ask a federal court to review certain types of agency decisions made within the Department of Transportation. A Georgia business suffered an unfavorable decision from the department, but more than 60 days later, the business learned that the agency official who decided its case had been improperly appointed. The business promptly petitioned for judicial review after learning of this appointment problem. And normally, the business would have had a good case for equitable tolling. Although the business did not petition for review within 60 days, that is because the government was not forthcoming about the appointment defect, a defect of which the government was aware when the decision was handed down.