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203.

Limitations Statutes Applicable to Suits Against the Government

When Congress creates rights of action against the government in the courts, it has generally included a time limit within which suit must be brought. In such situations the passage of time extinguishes the right and not just the remedy.

The statutes create a new legal liability, with the right to a suit for its enforcement, provided the suit is brought within twelve months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all. . . . Time has been made of the essence of the right, and the right is lost if the time is disregarded. The liability and the remedy are created by the same statutes, and the limitations of the remedy are, therefore, to be treated as limitations of the right.
The Harrisburg, 119 U.S. 199, 214 (1886).

While a private litigant may waive the running of the statute of limitations as to a suit against himself/herself, 51 Am. Jur.2d, Limitations of Actions § 422, statutes of limitation on suits against the government are jurisdictional and may not be waived except by Congress. See Munro v. United States, 303 U.S. 36 (1938); United States v. Trollinger, 81 F.2d 167 (4th Cir.), dismissed, 299 U.S. 617 (1936); 51 Am. Jur.2d, Limitation of Actions § 424. The time limitation may not be waived or abrogated by estoppel. See Lynch v. United States, 80 F.2d 418 (5th Cir. 1935), cert. denied, 298 U.S. 658 (1936); Roskos v. United States, 130 F.2d 751 (3d Cir. 1942), cert. denied, 317 U.S. 696 (1943). However, unless Congress expresses an intention otherwise, a statute of limitations upon a claim against the United States may be subject to equitable tolling in the same circumstances that would apply in a suit against a private party. Irwin v. Department of Veteran Affairs, 498 U.S. 89 (1990). The question of lack of jurisdiction of an untimely suit against the government may be raised for the first time on appeal after entry of judgment. See United States v. Mills, 91 F.2d 487 (6th Cir. 1937).

The limitations provisions applicable to specific actions are discussed in connection with the various kinds of suits discussed in this title.