Statute of Limitations and Settlement of Equal Credit Opportunity Act Discrimination Claims Against the Department of Agriculture

Statute of Limitations and Settlement of Equal Credit
Opportunity Act Discrimination Claims Against the
Department of Agriculture

T he A ttorney G eneral may not w aive the statute o f lim itations in the litigation or com prom ise of
pending claim s against the U nited States.

A bsent a specific provision to the contrary, a statute o f lim itations on civil actions also should apply
to adm inistrative settlem ents o f claim s arising under that statute pursuant to 31 U.S.C. §3702.

31 U S.C. § 3 7 0 2 does not authorize the D epartm ent o f A griculture to pay com pensatory dam ages
in an adm inistrative settlem ent o f an ECO A claim if E C O A ’s two year statute o f lim itations has
run.

Filing an adm inistrative claim with USDA does not toll E C O A ’s statute o f lim itations.

A lthough E C O A ’s statute o f lim itations is, in appropriate circum stances, subject to the doctrines of
equitable tolling and equitable estoppel, courts have rarely applied either doctrine against the United
States.

January 29, 1998

M e m o r a n d u m O p in io n f o r t h e A s s o c ia t e A t t o r n e y G e n e r a l

This memorandum responds to your request for advice on whether the statute
of limitations in the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691—I691f (1994
& Supp. I 1995) (“ ECOA” ), applies to administrative settlements of ECOA
claims. You also have asked us whether the government may waive the statute
of limitations, and under what circumstances the statute of limitations might be
tolled.
We have concluded that ECOA’s statute of limitations does apply to administra­
tive settlements of ECOA claims and that the statute of limitations cannot be
waived by the United States, either in litigation or in the administrative process.
As for tolling of the statute of limitations, we have concluded that filing an
administrative complaint does not toll the limitations period for a civil action.
While ECOA is, in relevant circumstances, subject to the doctrines of equitable
tolling and equitable estoppel, courts infrequently apply these doctrines against
the United States.

I. Background

In relevant part, ECOA prohibits any creditor from discriminating against any
applicant, with respect to any aspect of a credit transaction, on the basis of race,
color, religion, national origin, sex or marital status. 15 U.S.C. § 1691(a). A “ cred­
itor” under the act includes any person who regularly extends, renews, or con­
tinues credit. Id. § 1691a(e). A “ person” is “ a natural person, a corporation,

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government or governmental subdivision or agency, trust, estate, partnership,
cooperative, or association.” Id. § 1691a(f).
Administrative enforcement of ECOA is divided among several federal agen­
cies, each o f which has authority over certain categories of creditors. Id.
§ 1691c(a). Enforcement responsibility not specifically committed to another fed­
eral agency is vested in the Federal Trade Commission (“ FTC” ), which is to
use its powers under the Federal Trade Commission Act, 15 U.S.C.A. §§41-58
(West 1997), to enforce ECOA’s requirements. 15 U.S.C. § 1691c(c). The Depart­
ment of Agriculture’s ( “ USDA’s” ) farm credit programs fall under the authority
of the FTC. The FTC has authorized USDA to process ECOA claims arising from
USDA program s.1
Section 1691e o f ECOA also provides for a private right of action against credi­
tors who violate the discrimination prohibitions of the act. Under subsection (a),
all creditors are liable for compensatory damages: “ [a]ny creditor who fails to
comply with any requirement imposed under this subchapter shall be liable to
the aggrieved applicant for any actual damages sustained by such applicant acting
either in an individual capacity or as a member of a class.” Id. § 1691e(a). Sub­
section (d) authorizes the imposition of attorney’s fees and costs in a successful
action. Id. § 1691e(d). No private action may be brought later than two years after
the occurrence of the violation, unless the Attorney General or the agency with
administrative enforcement responsibility commences an enforcement proceeding
within two years. In that case, an applicant may bring a civil action within one
year of the commencement of the enforcement proceeding. Id. § 1691e(f).
In a 1994 opinion, this Office opined that ECOA applies to federal agencies
and that it waives the sovereign immunity of the United States for monetary relief.
Accordingly, we advised USDA that the Secretary could provide monetary relief,
attorney’s fees, and costs in administrative settlements of ECOA discrimination
claims if a court could award such relief in an action by an aggrieved person.
Authority o f USDA to A w ard Monetary R elief fo r Discrimination, 18 Op. O.L.C.
52 (1994) ( “ USDA Opinion” ). USDA accepts and processes ECOA complaints
pursuant to its process for investigating any discrimination complaint in its pro­
grams, which is set forth at 7 C.F.R. § 15.52 (1997). Those regulations permit
any person to file a written complaint regarding discrimination in any program
or facility directly administered by USDA. Id.
In October o f 1998, fourteen plaintiffs filed a class action suit against USDA
alleging that USDA had discriminated against them, and other similarly situated
individuals, on the basis of their race in the administration of farm loans and
credit programs during the period o f January 1983 to January 1997. Pigford v.
Glickman, 182 F.R.D. 341 (D.D.C. 1998). The court granted a stay of that action
to allow the plaintiffs and the United States to explore options for settling the
1 Letter for Robert Franco, Associate Director, O ffice of Advocacy and Enterprise, U.S. Department of Agriculture,
from David M edine, Associate Director for Credit Practices, Federal Trade Commission (Nov. 3, 1992) ( “ FTC
Letter” )

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Statute o f Limitations and Settlement o f Equal Credit Opportunity Act Discrimination Claims Against
the Department o f Agriculture

claims of the named plaintiffs and the putative class members. As part of the
Department’s consideration of settlement options, the Office of the Associate
Attorney General asked this Office for oral advice on the application of ECOA’s
statute of limitations to claims in litigation and to claims in USDA’s administrative
settlement process. Subsequently, you asked for a formal opinion on the following
questions: 1) can the United States waive the statute of limitations in an ECOA
civil action; 2) does ECOA’s statute of limitations apply to the administrative
settlement of ECOA claims by USDA; 3) does the filing of an administrative
complaint with USDA toll the statute of limitations; and 4) would the doctrines
of equitable tolling or equitable estoppel apply to these cases?
Our analysis proceeds as follows. In Part II, we conclude that the Attorney
General may not waive the statute of limitations in the litigation or compromise
of these claims. In Part III, we conclude that because USDA may make adminis­
trative settlements of ECOA claims that include compensatory damages only
where a court could award such relief, USDA may not waive the statute of limita­
tions in administrative settlements. Part III also concludes that section 3702 of
title 31 does not provide an independent basis of authority for the payment of
administrative claims filed after expiration of the ECOA statute of limitations.
Moreover, even where an administrative claim is filed within the ECOA statute
of limitations, USDA may not make payment on the claim without relevant appro­
priations authority. We understand that USDA’s appropriation authority, however,
would provide no basis for paying compensatory damages under ECOA where
the statute of limitations has expired and no timely claim was asserted in court.
Part IV examines the circumstances in which ECOA’s statute of limitations might
be tolled. That part concludes that filing an administrative claim does not toll
the statute of limitations on a civil action. It then concludes that although the
doctrines of equitable tolling and equitable estoppel would apply to ECOA in
appropriate circumstances, courts infrequently apply these doctrines against the
United States.

II. Waiver in Litigation

Ordinarily, a civil action for compensatory damages under ECOA must be filed
no later than two years from the date of occurrence of the violation. 15 U.S.C.
§ 1691e(f). However, when any agency responsible for administrative enforcement
under § 1691c of ECOA commences an enforcement proceeding within two years
from the date of the occurrence of the violation, or when the Attorney General
commences a civil action under this section within two years from the date of
the occurrence of the violation, “ any applicant who has been a victim o f the
discrimination which is the subject of such proceeding or civil action may bring

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an action under this section not later than one year after the commencement of
that proceeding or action.” 15 U.S.C. § 1691e(f).2
The federal courts and this Office have observed that the statute of limitations
for a cause of action against the United States constitutes a term of consent to
the waiver o f sovereign immunity. See Memorandum for James W. Moorman,
Assistant Attorney General, Land & Natural Resources Division, from John M.
Harmon, Assistant Attorney General, Office o f Legal Counsel, Re: Pueblo o f Taos
v. Andrus at 2 n.l (Mar. 30, 1979) (citing cases). The doctrine of sovereign immu­
nity precludes suit against the United States without the consent of Congress, and
the terms of its consent define the extent of a court’s jurisdiction. See United
States v. M ottaz, 476 U.S. 834, 841 (1986). In particular, “ ‘[w]hen waiver legisla­
tion contains a statute of limitations, the limitations provision constitutes a condi­
tion on the waiver o f sovereign immunity.’ ” Id. (quoting Block v. North Dakota,
461 U.S. 273, 287 (1983)). Because the terms of consent are established by Con­
gress, see id., modifying the terms of consent requires legislative action. See, e.g.,
United S tates v. G arbutt Oil Co., 302 U.S. 528, 534-35 (1938) (discussing Tucker
v. Alexander, 275 U.S. 228 (1927) (“ no officer of the government has power
to waive the statute o f limitations” )); Overhauser v. United States, 45 F.3d 1085,
1088 (7th Cir. 1995) (government officers have no general power to waive statutes
of limitations in tax cases and are limited to specific statutory authorizations for
such waivers). Thus the Attorney General cannot waive the statute of limitations
in the litigation or in the compromise of these pending claims.3

2 For simplicity, this opinion will refer to EC O A ’s limitation penod as a two-year restriction
3 In Irwin v. D epartment o f Veterans Affairs, 4 9 8 U.S. 89 (1990), the Supreme Court ruled that a statute o f limita­
tions in suits against the federal government is presumptively subject to equitable tolling Some have suggested
that the C ourt’s decision to allow equitable tolling implies that it is now possible for the government itself to waive
a legislatively imposed statute o f limitations. T here may be cases where, m the context of a specific statutory scheme,
the courts would have the authority to hold that the government had waived the applicable statute of limitations,
such as by failing to assert the defense in a responsive pleading. See Johnson v. Sullivan, 922 F.2d 346 (7th Cir.
1990) (en banc) (statutory requirement that plaintiff seek judicial review o f denial of benefits within 60 days of
receiving a final agency determination, or within such further tim e as the Secretary may allow, waived if not raised
in a responsive pleading as an affirmative defense). The general rule, however, still remains that the limitations
period is a condition o f the w aiver o f sovereign immunity. See Irwin, 498 U.S. at 94; Henderson v United States,
517 U.S. 654, 678 n.3 (1996) (Thomas, J., dissenting) ("Irw in did mark a departure from our earlier, and stricter,
treatment o f statutes o f limitations in the sovereign immunity context, but our decision in United States v. Williams,
514 U.S. 527 (1995), makes clear that statutes o f limitations in suits brought against the United States are no less
jurisdictional prerequisites than they were before Irw in.") (citations omitted); see also Lawyers Title Ins. Co v
D earborn Title Corp., 118 F.3d 1157, 1166 (7th Cir. 1997) (unlike statutes o f limitations in actions between private
parties, lim itations in suits against the United States are jurisdictional and not subject to waiver).
As a general matter, it seems clear that Irwin held that the doctrine of equitable tolling was implicitly included
within the w aiver o f sovereign immunity granted by Congress as part of the statute. Irwin, 498 U.S. at 95-96
Irwin did not alteT the well-established precedent that statutes o f limitations reflect a condition on Congress’s waiver
o f sovereign immunity. See id. at 94. The C ourt has repeatedly affirmed that principle. See, e g .. United States
v. Williams, 514 U.S. 527, 534 (1995); see also Richmond. Fredericksburg <£ Potomac R.R. Co. v. United States,
945 F.2d 765, 769 (4th Cir. 1991), cert, denied, 503 U.S. 984 (1992); Dillard v. Runyon, 928 F. Supp. 1316, 1324
(S.D.N.Y. 1996), a ff'd , 108 F 3 d 1369 (2d Cir. 1997); cf. Calhoun County v. United States, 132 F.3d 1100 (5th
Cir. 1998) (Irwin reinterpreted the intent behind congressional waivers o f sovereign immunity, but did not necessarily
alter the nature o f the conditions on that waiver). Indeed, the Court reaffirmed this principle just months before
issuing its decision in Irwin, see United Suites v. Dalm, 494 U.S. 596, 608 (1990), and Irwin nowhere rejects Dalm
or the cases cited therein. W e therefore do not read Irwin to imply that the statute of limitations in a suit against
the U nited States is w aivable, either as an affirmative defense or at the discretion of an executive officer. See Bath

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 Statute o f Limitations and Settlement o f Equal Credit Opportunity Act Discrimination Claims Against
the Department o f Agriculture

III. Administrative Settlements

A. Authority fo r Administrative Settlements

ECOA does not expressly address the administrative settlement o f ECOA claims
against federal agency creditors. This Office has previously opined that the Sec­
retary of Agriculture may award monetary relief, attorney’s fees, and costs in
administrative settlements of ECOA discrimination claims if a court could award
such relief in an action by an aggrieved person. USDA Opinion at 2. That opinion
considered the applicability of 31 U.S.C. § 1301(a) (1994), which states that fed­
eral agencies may spend funds only on the objects for which they were appro­
priated. USDA Opinion at 2. “ Consistent with this requirement, appropriations
law provides that agencies have authority to provide for monetary relief in a vol­
untary settlement of a discrimination claim only if the agency would be subject
to such relief in a court action regarding such discrimination brought by the
aggrieved person.” Id. (footnote omitted). The Comptroller General has applied
the same principle in evaluating agency authority to settle claims under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§2000e to 2000e-17 (1994 & Supp.
I 1995), and the Age Discrimination in Employment Act of 1967, 29 U.S.C.A.
§§621-634 (West 1985 & Supp. Ill 1997). The Comptroller General ruled that
an agency may provide back pay or attorney’s fees only where such monetary
relief would be available in a court proceeding on the claim. See USDA Opinion
at 2 (discussing 62 Comp. Gen. 239 (1983); 64 Comp. Gen. 349 (1985)). Because
ECOA waives sovereign immunity with respect to compensatory damages, id. at
17-19, agencies may provide compensatory damages in their voluntary settlement
of discrimination claims if the conduct complained of violates ECOA. See id.
at 20.
The Credit Practices Bureau of the FTC also has advised USDA that it may
investigate and provide appropriate remedies for ECOA claims filed against
USDA. The FTC authorized USDA to investigate ECOA complaints regarding
USDA lending programs in a letter of understanding, see FTC Letter, and told
us that it orally advised USDA that USDA may provide appropriate remedies
for valid claims prior to litigation.

B. Waiver o f Statute o f Limitations

The same prohibition that applies to waiving the statute of limitations in litiga­
tion would apply to waiving the statute in any pre-litigation, administrative settle­
ment o f an ECOA claim at USDA. As our 1994 opinion explained, USDA’s
authority to use existing appropriations to pay administrative ECOA claims

Iron Works Corp v United Stales, 20 F 3d 1567, 1572 n 2 (Fed C ir 1994) ( “ Tolling is not the same as waiving
Presumably, therefore, Irwin merely holds that those time limits, while jurisdictional, can be equitably tolled in
certain circumstances ” )

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depends upon the existence of a viable civil action that could be brought by the
aggrieved claimant. See USDA Opinion at 1-2. A court can award damages
against the United States only where there has been a waiver of sovereign immu­
nity. ECOA’s waiver of sovereign immunity is valid only where a claim is filed
before the expiration o f the limitations period. Thus, if the statute of limitations
has expired, a court cannot award damages on that claim, and the agency cannot
rely on the existence of a viable ECOA claim as a basis for expending appro­
priated funds to pay compensatory damages as part of an administrative settlement.

C. A pplicability o f 31 U.S.C. § 3 7 0 2

You have asked us to consider how the provisions of 31 U.S.C. §3702, which
governs the settlement of claims against the United States, apply to the settlement
of ECOA claims. Prior to 1996, § 3702 authorized the General Accounting Office
(“ GA O ” ) to settle all claims against the United States “ except as provided in
. . . another law.” 31 U.S.C. §3702 (1994 & Supp. Ill 1997).4 A 1996 amend­
ment to § 3702 transferred the settlement authority to various executive agencies,
including the Office of Personnel Management, the Secretary of Defense, and the
Office of Management and Budget. See 31 U.S.C.A. § 3702(a) (West 1983 &
Supp. Ill 1997).
The term “ settle” in §3702 does not mean “ compromise,” but rather refers
to an administrative determination o f the amount of money (if any) due a claimant.
See 3 Principles of Federal Appropriations Law 12-9 (2d ed. 1992) (citing Illinois
Surety Co. v. U nited States ex rel. Peeler , 240 U.S. 214, 219-21 (1916)); State
v. Bowsher, 734 F. Supp. 525, 530 n.4 (D.D.C. 1990). Claims presented for settle­
ment under § 3702 must be received within six years from the date on which
the claim arose, “ except as provided in this chapter or another law.” 31 U.S.C.
§ 3702(b)(1)(A).
You have asked us to consider in particular whether § 3702(b) would allow
USDA to include compensatory damages in settlements of ECOA claims filed
within six years of the accrual of the claim, even if ECOA’s statute of limitations
had run and a court could no longer award such damages. We have concluded,
first, that § 3702 would apply only to those ECOA claims filed with USDA within
the two-year statute o f limitations in ECOA. Second, we have concluded that
§3702 provides no authority to pay a claim if funds have not otherwise been
appropriated. USDA has informed us that it does not have appropriations authority
to pay compensatory damages other than the authority that exists when a court
could award such damages in a civil action. Thus, even if the appropriate statute
4 As previously noted, ECOA vests the FTC w ith administrative enforcement responsibility not specifically com­
mitted to another federal agency, see 15 U.SC § 1691c(c), but does not expressly address the administrative settle­
ment o f ECOA claims against federal agency creditors. For the purposes of this opinion, we assume without deciding
that neither ECOA nor the Federal Trade Commission Act provides for the settlement of claims against federal
agency creditors within the meaning o f § 3702(a), and that the provisions of §3702 would apply to administrative
settlements o f these claims.

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 Statute o f Limitations and Settlement o f Equal Credit Opportunity Act Discrimination Claims Against
the Department o f Agriculture

of limitations for an administrative claim under § 3702 were six years instead of
two years, USDA could not pay compensatory damages as part of an administra­
tive settlement if the two-year statute of limitations had run.

1. Length o f Limitations Period

We start with the determination of the appropriate time limitation for ECOA
claims. While the GAO has not issued any opinions regarding the settlement of
ECOA claims, it has considered the interaction of § 3702(b) and other limitations
periods on civil causes of action.5 For many years, GAO’s position was that stat­
utes setting limitations on “ causes of action” or “ civil actions” applied only
to judicial proceedings, and therefore claims filed with an agency rather than a
court were subject to the six-year limitation of § 3702(b). See, e.g., 51 Comp.
Gen. 20, 22 (1971) (GAO will settle claims for communications services filed
within six years notwithstanding shorter limitation on “ actions at law” in the
Interstate Commerce Act and the Communications Act); 57 Comp. Gen. 441, 443
(1978) (claims for overtime compensation may be filed up to six years after the
claim first accrued notwithstanding the two or three-year limitation period in the
Fair Labor Standards Act).
In a 1994 decision, GAO reconsidered and reversed this position. 73 Comp.
Gen. 157 (1994). The relevant decision arose under the Fair Labor Standards Act,
29 U.S.C. §§201-219 (1994) (“ FLSA” ). A claim for unpaid minimum wages,
unpaid overtime compensation and liquidated damages under FLSA must be filed
within two years of the time it first accrues, or three years if it arises out of
a willful violation. 29 U.S.C. §255 (1994). The claimant sought overtime com­
pensation for the six-year period that preceded his claim. The Air Force, the claim­
ant’s employer, and the Office of Personnel Management ( “ OPM” ) argued that
FLSA’s two or three-year limitations period, rather than the six-year period in
§ 3702(b), should govern the claim. 73 Comp. Gen. at 160. In ruling against the
claimant, GAO cited cases holding that when a statute creates a right that did
not exist at common law and limits the time to enforce it, the lapse of time not
only bars the remedy but extinguishes the underlying rights and liabilities of the
parties. See William Danzer Co. v. G ulf R.R., 268 U.S. 633, 635-36 (1925);
Kalmich v. Bruno, 553 F.2d 549, 553 (7th Cir.), cert, denied, 434 U.S. 940 (1977)
(cited in 73 Comp. Gen. at 161).6 “ Accordingly, a time limitation imposed on
a statutorily created judicial cause of action will apply to administrative pro­
ceedings to adjudicate the same claims absent a specific provision to the con­

5 Although the opinions and legal interpretation of the GAO and the Comptroller General often provide helpful
guidance on appropriations matters and related issues, they are not binding upon departments, agencies, or officers
of the executive branch See Bowsher v. Synar, 478 U.S 714, 727-32 (1986).
6 OPM. which now has the authonty to settle claims involving leave and compensation of federal civilian employees
under § 3702(a)(2), informed us that it has continued to apply the FLSA statute of limitations to FLSA claims filed
against federal agencies.

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trary.” 73 Comp. Gen. at 161. Because FLSA contained no provision indicating
that a different limitations period should apply to administrative claims, GAO
determined that the two or three-year statute of limitations in FLSA applies to
the administrative settlement of FLSA claims under § 3702. Id.
We need not resolve here whether GAO’s reversal o f its long-standing position
was warranted because we believe that, in light of subsequent congressional
action, GAO’s 1994 interpretation should now govern.7 Following the GAO deci­
sion announcing that it would apply the two or three-year limitations period to
FLSA claims, Congress enacted a grandfather provision to except those FLSA
claimants who might have relied on the earlier GAO interpretation, but Congress
did not amend the statute to alter the prospective application o f the two or three-
year limitations period. Under section 640 of the 1995 Treasury, Postal Service
and General Government Appropriations Act, Congress directed GAO to apply
a six-year statute of limitations to all FLSA claims filed before June 30, 1994;
significantly, it did not alter the effect of the GAO decision as to claims filed
after that date. See Pub. L. No. 103-329, §640, 108 Stat. 2382, 2432 (1994).
In addition, Congress revisited the settlement of claims under §3702 on three
other occasions. In 1995, it amended section 640 by excluding from its coverage
claims in which an employee received any compensation for overtime hours
worked during the period covered by the claim, or claims for compensation for
time spent commuting between an employee’s residence and duty station.
Treasury, Postal Service, and General Government Appropriations Act, 1996, Pub.
L. No. 104-52, 109 Stat. 468, 468—69 (1995). Congress also transferred GAO’s
functions under several statutes, including § 3702, to the Office of Management
and Budget, contingent upon the transfer o f such personnel, budget authority,
records and property as deemed necessary. See Legislative Branch Appropriations
Act, 1996, Pub. L. No. 104-53, §211, 109 Stat. 514, 535 (1995). Finally, in 1996,
Congress amended the text of § 3702 itself, transferring the responsibility for set­
tling claims to various executive branch agencies, including the Department of
Defense and OPM. General Accounting Office Act o f 1996, Pub. L. No. 104-
316, §202(n), 110 Stat. 3826, 3843—44. In none of these amendments did Con­
gress alter the GAO’s interpretation of the statute of limitations provision for
FLSA claims filed after June 30, 1994.
Thus, in interpreting § 3702, we must consider that Congress has made specific
adjustments to the statutory scheme in light of the GAO interpretation and left
the agency’s interpretation undisturbed. See generally CFTC v. Schor, 478 U.S.
833, 846 (1986). The legislative record is not limited to instances in which Con­
gress revisited the statute and abstained from overturning the administrative
construction. Although such action provides relevant, albeit uncertain, evidence

7 W e note that one district court has held that the tw o or three-year limitation in FLSA applies to both administra­
tive and judicial claims The court further stated th at while it was aware that G A O had applied a six-year limitation
to FLSA claims for many years, “ G A O was w rong to do so” and had no such authority. Adams v Bowsher, 946
F. Supp 37, 42 (D.D.C. 1996).

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the Department o f Agriculture

of legislative intent, see generally United States v. Wells, 519 U.S. 482, 494 (1997)
(finding legislative silence inconclusive because Congress has not spoken directly
to the interpretive issue in question), here, Congress has done more than merely
“ kept its silence.” Schor, 478 U.S. at 846. Rather, Congress has spoken directly
to the interpretive issue in question by enacting legislation specifically related
and responsive to the GAO interpretation. See id.; Bell v. New Jersey , 461 U.S.
773, 785 n.12 (1983); Red Lion Broad. Co. v. FCC , 395 U.S. 367, 381-82 (1969);
Zemel v. Rusk, 381 U.S. 1, 11 (1965); cf. Wells, 519 U.S. at 494. While at one
time, § 3702 may have been reasonably subject to conflicting interpretations, the
statute cannot be divorced from the subsequent— and directly relevant— congres­
sional action, which now forms a strong basis of support for the GAO interpreta­
tion.8 Accordingly, absent a specific provision to the contrary, ECOA’s limitation
on civil actions also should apply to administrative settlements of ECOA claims.
As noted earlier, ECOA does not expressly address administrative claims against
federal agency creditors, and its limitation provision does not specifically except
administrative claims. Section 1691e establishes civil liability for any actual dam­
ages sustained by an applicant. 15 U.S.C. § 1691e(a). That section then provides
that “ [a]ny action under [§ 169le] may be brought in the appropriate United States
district court without regard to the amount in controversy, or in any other court
of competent jurisdiction.” Id. § 1691e(f).
The language of ECOA’s limitation provision is not as broad as that of the
limitations provision in FLSA. The heading of § 1691e(f) is “ Jurisdiction of
courts; time for maintenance of action; exceptions,” and the first sentence o f sub­
section (f) authorizes bringing actions in an appropriate court. Id. The word
“ court” does not appear in FLSA’s limitation provision. See 29 U.S.C. §255
(“ Any action commenced on or after May 14, 1947, to enforce any cause of
action . . . if the cause of action accrues on or after May 14, 1947[,] may be
commenced within two years after the cause of action accrued, and every such
action shall be forever barred unless commenced within two years after the cause
of action accrued . . . .” ).
Based on these differences in text, the argument that § 1691e(f) of ECOA should
be limited to judicial causes of action is stronger than that regarding § 255 of
FLSA. There is nothing in ECOA’s legislative history, however, to suggest that
Congress intended to grant applicants with claims against federal agency creditors
a different and longer limitations period than that available to applicants of private
creditors. Moreover, ECOA’s limitation provision is included in the same section
as the provision that establishes the right to compensatory damages, and the limita­

8A 1951 opinion o f the Attorney General concluded that a statute of limitations for suits brought against the
Commodity Credit Corporation did not bar administrative payment of claims filed with the agency after the expiration
of that limitations period. Commodity Credit Corporation, Payment o f Claims Barred by Statute o f Limitations, 41
Op A tt’y Gen. 80 (1951) The 1951 opinion predates G A O ’s announcement of its revised interpretation o f §3702,
and, more importantly, Congress’s response to that revised interpretation The 1951 opinion therefore does not con­
stitute precedent that counsels a different result in this matter

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tion provision does not specifically except administrative claims from its provi­
sions. See 15 U.S.C. § 1691e(a), (f). Accordingly, we conclude that ECOA’s
statute of limitations also applies to administrative settlements of ECOA claims.

2. A ppropriations Authorized to Pay D am ages

W e next examine whether §3702 provides an independent basis of authority
to expend appropriations to pay claims in the absence of an ECOA claim that
could be filed in court, so long as the claims are filed with the relevant agency
within the appropriate statutory tim e period. Although § 3702 provides an inde­
pendent administrative claims handling procedure, the statute does not provide
an independent basis of authority for paying such claims. Rather, in order for
payment o f the claim to be lawful, there must be independent appropriations
authority to pay the claim. Under § 3702(d), claims that may merit relief, but
that cannot be “ adjusted . . . using an existing appropriation,” are to be referred
to Congress for possible legislative action. 31 U.S.C. § 3702(d). A claim that is
adjusted under §3702 “ using an existing appropriation” must be paid from either
a pre-existing appropriations account for the year in which the claim accrued or,
if such an account is not available, an account for the current year for the same
object and purpose. See id. § 3702(d); 31 U.S.C. §§1552, 1553 ( 1 9 9 4 ) 9 Thus,
it is evident from the text of § 3702 that it provides no basis for paying any claims
for which there is no independent appropriations authority, which would include
ECOA claims involving compensatory damages or other relief that is not author­
ized by USDA’s other operating and program authority.
OPM has informed us that it deems claims under FLSA to be timely if they
are filed with OPM or the relevant agency within the statute of limitations, regard­
less o f when or whether such claim is filed with a court. If this practice properly
applied to ECOA claims, USDA could settle and pay any claims that were filed
with USDA within the applicable two-year statute of limitations. However, OPM
has informed us that the claims that it settles under § 3702 are claims for which
there is an existing appropriation, such as claims relating to back pay, Uving
expenses, overtime or holiday pay, or cost o f living adjustments. While § 3702
provides the authority for OPM or an agency to examine and settle those claims,
the authority to pay out funds to claimants arises from the underlying appropria­
tion for overtime or living expenses. If benefits are due, OPM has explained to
us, it directs the relevant agency to pay the claimant the administrative benefits
to which he or she would have been entitled. There is no award of compensatory

9 U nder § 1552 o f title 31, agencies are required to keep accounts open on fixed appropriations for five years
In settling a claim under §3702 that accrued w ithin five years, OPM explained that »t would direct the relevant
agency to pay the claim from the money remaining in its account for the relevant appropriation for the relevant
year. If no funds remained in the account, or the claim accrued more than five years earlier (and the appropriations
account has been closed), 31 U .S C . § 1553 provides that any obligation that would have been properly charged
to the closed appropriation account “ may be charged to any current appropriation account of the agency available
for the sam e purpose ” Id. § 1553(b)(1).

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the Department o f Agriculture

damages. The authority to pay compensatory damages for an ECOA claim, in
contrast, derives from the waiver of sovereign immunity in ECOA and is
dependent upon the fact that a court could award such damages in a civil action.
See USDA Opinion at 2, 20.
Accordingly, §3702 does not provide an independent basis for USDA to pay
compensatory damages for an ECOA claim. The requirement that claims settled
pursuant to § 3702 be charged to the specific appropriation for the year in which
the claim arose or to a current appropriation for the same purpose is in accord
with our earlier conclusion that compensatory damages may only be paid out “ if
the agency would be subject to such relief in a court action.” USDA Opinion
at 2.

IV. Tolling of the Statute of Limitations

We next consider in what circumstances ECOA’s statute of limitations might
be tolled. First, we address whether filing an administrative claim tolls the statute
of limitations. Second, we consider whether the statute of limitations is subject
to equitable tolling. Finally, we consider whether a court might hold the United
States estopped from raising the statute of limitations as a defense to all or a
portion of a claim.

A. Filing an Administrative Complaint

As a general matter, courts do not toll a statute of limitations simply because
the plaintiff is pursuing an alternative means of obtaining relief that is not a condi­
tion precedent to bringing suit under the relevant statute. See D elaware State Col­
lege v. Ricks, 449 U.S. 250, 261 (1980) (Title VII’s statute of limitations not
tolled during employer’s consideration of grievance); Electrical Workers v. Rob­
bins & Myers, Inc., 429 U.S. 229, 236-37 (1976) (no tolling of period for filing
EEOC claim during grievance-arbitration proceedings; collective bargaining rights
are independent of those conferred by Title VII); Johnson v. Railway Express
Agency, 421 U.S. 454 (1975) (statute of limitations for claims brought under 42
U.S.C. § 1981 not tolled during processing of complaint under Title VII; § 1981
offers independent avenue of relief). While pursuit of mandatory administrative
remedies can delay the start or running of a statute of limitations, pursuit of rem­
edies that are merely permissive does not toll a limitations period. Spannaus v.
U.S. D e p ’t o f Justice, 824 F.2d 52, 56-57, 60-61 (D.C. Cir. 1987); Conley v.
International Brotherhood o f Electrical Workers, Local 639, 810 F.2d 913 (9th
Cir. 1987) (filing of unfair labor practice charge with National Labor Relations
Board does not toll limitations period applicable to lawsuit against union based
on the charge; NLRB action was merely optional, though parallel, avenue of
relief). An administrative procedure is “ permissive” if its pursuit is not a pre­

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condition to pursuit o f a lawsuit. Spannaus, 824 F.2d at 58. Accordingly, if filing
an ECOA complaint with USDA is a voluntary, permissive administrative remedy,
filing an administrative claim would not toll the ECOA limitations period
applicable to this lawsuit.
It appears that USDA’s administrative process is a parallel, voluntary procedure.
ECOA does not require an aggrieved applicant to file an administrative complaint
against a government creditor before filing suit in court. Nor has the FTC, which
has administrative enforcement responsibility for claims against the USDA,
indicated in its regulations that exhaustion of an administrative process is required.
USDA has suggested that 7 U.S.C. § 6912(e) (1994) may require an ECOA
claimant to exhaust administrative procedures before filing suit against the Sec­
retary or the Department of Agriculture, and, accordingly, that the statute of limita­
tions should be tolled pending resolution of the administrative process. Enacted
in 1994, § 6912(e) states:

Notwithstanding any other provision o f law, a person shall exhaust
all administrative appeal procedures established by the Secretary
or required by law before the person may bring an action in a court
o f competent jurisdiction against—

(1) the Secretary;
(2) the Department; or
(3) an agency, office, officer, or employee o f the Depart­
ment.

Id .10 USDA has promulgated regulations prohibiting discrimination in the adminis­
tration of USDA programs and facilities. 7 C.F.R. pt. 15, subpt. B (1997). Under
§ 15.52(b) o f those regulations, a person “ may” file a written complaint of
discrimination with the Office o f Advocacy and Enterprise. 7 C.F.R. § 15.52(b).
The complaint procedure in § 15.52 is not required by law, but it was established
by the Secretary. Thus USDA has suggested that § 6912(e) requires that an ECOA
claimant exhaust the administrative procedure in § 15.52 before bringing a civil
action.
We do not think that the process for pursuing an ECOA claim under § 15.52
is an “ administrative appeal procedure” within the meaning of § 6912(e). An
ECOA claim under § 15.52 is not an “ appeal” of a USDA program action. It
is a separate determination of a complaint regarding discrimination in USDA’s
administration of its programs. The premise of an ECOA claim is that there has
been a final agency determination on the underlying decision regarding the loan
or benefit. Significantly, the decisions applying § 6912(e) to date all have involved

10 Because this provision was not enacted until October 1994, it provides no grounds for tolling the statute of
limitations on claim s that accrued before October o f 1992.

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the Department o f Agriculture

appeals of USDA decisions under statutes and programs administered by the
USDA. See Bastek v. Federal Crop Ins. Corp., 975 F. Supp. 534 (S.D.N.Y. 1997)
(farmers must appeal deduction of salvage value and market price calculation in
indemnity to Risk Management Agency); In re Cottrell, 213 B.R. 33 (M.D. Ala.
1997) (exhaustion applies to Rural Housing Services procedures, which are cov­
ered by National Appeals Division); Calhoun v. USDA Farm Serv. Agency , 920
F. Supp. 696 (N.D. Miss. 1996) (exhaustion applies to failure to give former owner
preference in foreclosure sale where he could have appealed to National Appeals
Division); Gleichman v. USDA, 896 F. Supp. 42 (D. Me. 1995) (plaintiffs must
appeal suspension of participation in Rural Housing Service programs to Adminis­
trative Law Judge as provided in 7 C.F.R. §3017.515 (1995)). W e have found
no decision that does not involve implementation of a USDA program.
We note that if § 6912(e) were found to apply to complaints under § 15.52,
it would bar any plaintiff who has filed an administrative complaint from bringing
suit under ECOA in the district court until USDA takes final action on the com­
plaint. Because § 6912(e) places no time limits on the procedures established by
the Secretary, moreover, plaintiffs could be barred from court for an indeterminate
period of time. While we have found nothing in the legislative history of § 6 9 12(e)
that elaborates on its intended purpose, it seems unlikely that Congress intended
such a result. The better interpretation, we believe, is that § 6 9 12(e) applies to
administrative procedures related to statutes or programs administered by USDA.
Accordingly, § 15.52 is a permissive procedure, and filing an administrative com­
plaint would not toll the statute of limitations.

B. Equitable Tolling & Equitable Estoppel

We next consider the application of equitable principles to these claims. Courts
have attempted to distinguish the doctrine of equitable tolling from that o f equi­
table estoppel by noting that equitable tolling principally “ focuses on the plain­
tiffs excusable ignorance of the limitations period” and the “ lack of prejudice
to the defendant” while equitable estoppel “ usually focuses on the guilty actions
of the defendant.” See Supermail Cargo, Inc. v. United States, 68 F.3d 1204,
1207 (9th Cir. 1995) (quoting Naton v. Bank o f California, 649 F.2d 691, 696
(9th Cir. 1981)).

1. Equitable Tolling

In Irwin v. Department o f Veterans Affairs, 498 U.S. 89 (1990), the Supreme
Court held that “ the same rebuttable presumption of equitable tolling applicable
to suits against private defendants . . . applfies] to suits against the United
States.” Id. at 95-96. However, “ [f]ederal courts have typically extended equi­
table relief only sparingly” in suits against private parties, and “ it is evident that

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no more favorable tolling doctrine may be employed against the Government than
is employed in suits between private litigants.” Id. at 96. In Irwin, the Court
observed that equitable tolling has been found where “ the claimant has actively
pursued his judicial remedies by filing a defective pleading during the statutory
period, or where the complainant has been induced or tricked by his adversary’s
misconduct into allowing the filing deadline to pass.” Id. (footnotes omitted).
Courts have been less forgiving o f “ late filings where the claimant failed to exer­
cise due diligence in preserving his legal rights.” Id.

a. Is ECOA Subject to Equitable Tolling ?

W e thus begin with the presumption that equitable tolling applies to ECOA’s
statute of limitations, and consider whether there is “ good reason to believe that
Congress did not want the equitable tolling doctrine to apply in a suit against
the Government.” United States v. Brockamp, 519 U.S. 347, 347 (1997). In
Broclcamp, the Court concluded that Congress did not intend for equitable tolling
to apply to the time and related amount limitations for filing tax refund claims.
The Court noted that “ [ojrdinarily limitations statutes use fairly simple language,
which one can often plausibly read as containing an implied ’equitable tolling’
exception.” Id. at 350. The limitations provision at issue in Brockamp, 26 U.S.C.
§6511 was quite different. It set forth its time limitations “ in a highly detailed
technical m anner” and imposed substantive limits on the amount recovered that
were related to the time limitations. Id. In addition, the statute contained excep­
tions with special time limit rules for six types o f claims, none of which addressed
equitable tolling. Reading an implied equitable tolling provision into that statute,
the Court observed, would work “ linguistic havoc.” Id. at 352. Moreover, tax
law is not “ normally characterized by case-specific exceptions reflecting individ­
ualized equities.” Id.
In contrast, ECOA’s statute of limitations is relatively straightforward:

No such action shall be brought later than two years from the date
o f the occurrence of the violation, except that—

(1) whenever any agency having responsibility for adminis­
trative enforcement under section 1691c of this title com­
mences an enforcement proceeding within two years from
the date of the occurrence of the violation,
(2) whenever the Attorney General commences a civil action
under this section within two years from the date of the
occurrence of the violation,

then any applicant who has been a victim of the discrimination
which is the subject of such proceeding or civil action may bring

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the Department o f Agriculture

an action under this section not later than one year after the
commencement of that proceeding or action.

15 U.S.C. § 1691e(f). The structure of § 1691e(f) is more similar to the limitation
provision in Title VII, to which the Court found equitable tolling applied in Irwin ,
than it is to the statute at issue in Brockamp. Like Title VII, moreover, ECOA
is a remedial statute amenable to exceptions for individualized equities. Section
1691e(f) does contain explicit exceptions to the limitation period. But the excep­
tions in ECOA are not as numerous or as intricate as those in the provision in
Brockamp'. In addition, the exceptions in ECOA extend the limitations period to
allow a plaintiff who becomes aware of discrimination after the government com­
mences enforcement proceedings to bring an action. This purpose is not incon­
sistent with applying equitable tolling to the limitation period. We therefore con­
clude that ECOA’s statute of limitations is, in appropriate circumstances, subject
to the doctrine of equitable tolling.

b. Is Equitable Tolling Warranted fo r these Claims?

The application of the equitable tolling doctrine depends on the facts of each
case. “ The Supreme Court has suggested in Baldwin County Welcome Ctr. v.
Brown , 466 U.S. 147 (1984) (per curiam), that courts may properly allow tolling
where ‘a claimant has received inadequate notice, . . . where a motion for
appointment of counsel is pending and equity would justify tolling the statutory
period until the motion is acted upon, . . . where the court has led the plaintiff
to believe that she had done everything required of h e r,. . . [or] where affirmative
misconduct on the part of a defendant lulled the plaintiff into inaction.’ ” Mondy
v. Secretary o f the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988) (quoting Baldwin,
466 U.S. at 151 (citations omitted)). Courts .have found notice inadequate, where
an agency fails to provide a claimant with notice required by statute. See Coles
v. Penny, 531 F.2d 609, 614-17 (D.C. Cir. 1976) (statute of limitations tolled
where EEOC failed to provide notice of right to sue as required by statute) (inter­
preting Gates v. Georgia-Pacific Corpr, 492 F.2d 292 (9th Cir. 1974) (tolling
statute of limitations where EEOC failed to provide notice of right to sue required
by its regulations)). In addition, failure to meet a statutory deadline “ ‘may be
excused if it is the result of justifiable reliance on the advice of a government
officer.’ ” Bull S.A. v. Comer, 55 F.3d 678, 681 (D.C. Cir. 1995) (quoting Jarrell
v. United States Postal Serv., 753 F.2d 1088, 1092 (D.C. Cir. 1985)). A final
factor that.courts have considered is whether the plaintiff was represented by an
attorney. Courts are less likely to find equitable tolling if the plaintiff has legal
representation. See, e.g., Kelley v. NLRB, 79 F.3d 1238 (1st Cir. 1996) (no tolling
where NLRB employee erroneously informed attorney that NLRB would serve

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defendant with charges because represented plaintiffs generally deemed to have
constructive knowledge of regulatory requirements).
USDA has suggested, in particular, that the D.C. Circuit’s decision in Bull S.A.
might support an equitable tolling argument for the ECOA claimants. In Bull S.A.,
the court held that a corporation justifiably relied on a sealed Certificate of
Renewal for its trademark which stated that the renewal' would last twenty years
from May 15, 1972. In fact, the renewal should have run from May 15, 1971.
The corporation missed the 1991 renewal deadline but applied within the proper
time had the renewal in fact expired in 1992. Bull S.A., 55 F.3d at 682. In finding
that the period of renewal on B ull’s trademark should be equitably tolled, the
court stated that “ Bull received an official government document, published under
the signature and Seal of the Commissioner, that certified a renewal lasting until
May 15, 1992. Once in receipt of this document, and, . . . absent any cir­
cumstances that would alert Bull to the error, Bull was entitled to rely on its
validity.” Id.
As a general matter, USDA has suggested that claimants may be able to argue
that they justifiably relied on the conduct of USDA officials to conclude that filing
an administrative complaint tolls ECOA’s statute of limitations. The conduct in
question includes failing to alert claimants o f their right to pursue immediate relief
under ECOA; inviting claimants to submit claims for compensatory damages upon
a finding of discrimination; and engaging in settlement negotiations regarding
damages. Because there is no legal requirement that the government provide
potential ECOA plaintiffs with notice of the right to file a civil action, ECOA
claimants will have difficulty asserting inadequate notice as a grounds for equi­
table tolling. Compare Coles, 531 F.2d at 614-17. Absent a more specific govern­
ment statement that the filing of an administrative complaint tolled the limitations
period on an ECOA civil action, it is unlikely that a court would find such conduct
sufficient to apply equitable tolling. However, the application of the doctrine to
a particular case will depend on the facts present in that case.

2. Equitable E stoppel

“ The doctrine of equitable estoppel is not, in itself, either a claim or a defense.
Rather, it is a means of precluding a litigant from asserting an otherwise available
claim or defense against a party who has detrimentally relied on that litigant’s
conduct.” A TC Petroleum, Inc. v. Sanders, 860 F.2d 1104, 1111 (D.C. Cir. 1988).
While the Supreme Court has not foreclosed the possibility that equitable estoppel
may lie against the United States, “ it is well settled that the Government may
not be estopped on the same terms as any other litigant.” Heckler v. Community
Health Servs., 467 U.S. 51, 60 (1984) (footnote omitted). In fact, the Supreme
Court has reversed every finding o f equitable estoppel requiring the payment of
money by the United States that it has reviewed. See OPM v. Richmond, 496

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the Department o f Agriculture

U.S. 414, 427 (1990); Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947).
Thus, “ despite the doctrine’s flexibility in disputes between private parties, its
application to the government must be rigid and sparing.” ATC, 860 F.2d at 1111.
A party seeking to assert estoppel against the government must do more than
establish the traditional private law elements of the doctrine, which are “ ‘false
representation, a purpose to invite action by the party to whom the representation
was made, ignorance of the true facts by that party, and reliance.’ ” See id. The
litigant must also demonstrate that the government engaged in some sort of
“ affirmative misconduct,” OPM, 496 U.S. at 421, and that there will be no
“ undue damage” to the public interest. ATC, 860 F.2d at 1111-12. Accordingly,
reliance on a government official’s misstatement is not sufficient to estop the
United States. Because “ parties dealing with the government ‘are expected to
know the law and may not rely on the conduct of Government agents contrary
to law,’ ” id. at 1111 (quoting Heckler, 467 U.S. at 63), “ there is no grave injus­
tice in holding parties to a reasonable knowledge of the law.” Id. at 1112.
Courts require special rigor in examining claims that would estop the govern­
ment so as to entitle claimants to monetary payments not otherwise permitted
by law. This concern is grounded in the principle of separation of powers. For
“ [i]f agents of the Executive were able, by their unauthorized oral or written
statements to citizens, to obligate the Treasury for the payment of funds, the con­
trol over public funds that the [Appropriations] Clause reposes in Congress in
effect could be transferred to the Executive.” OPM, 496 U.S. at 428. Moreover,
“ Congress has always reserved to itself the power to address claims of the very
type presented by [a claimant arguing estoppel], those founded not on any statu­
tory authority, but upon the claim that ‘the equities and circumstances of a case
create a moral obligation on the part of the Government to extend relief to an
individual.’ ” Id. at 431 (referring to congressional reference cases and private
legislation procedures).
A plaintiff seeking to estop the government from asserting the statute of limita­
tions in these cases might make two arguments. First, claimants might argue that
USDA’s actions led them to believe its administrative process tolled the running
of the statute of limitations on a civil action. Second, plaintiffs might argue that
USDA told them that it would settle their claims in an administrative process,
or led them to believe that relief would be available in the administrative process
even if the statute of limitations ran on a judicial action. This belief, in turn,
may have lulled claimants into believing that they would be compensated by
USDA and that it therefore was unnecessary to seek relief in court.
Neither of these arguments is likely to succeed in the absence of affirmative
misconduct by the government. To qualify as affirmative misconduct, a govern­
ment official’s conduct must amount to “ more than mere negligence, delay, inac­
tion, or failure to follow an internal agency guideline.” Ingalls Shipbuilding, Inc.
v. Department o f Labor, 976 F.2d 934, 938 (5th Cir. 1992) (quoting Mangaroo

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v. N elson , 864 F.2d 1202, 1204—05 (5th Cir. 1989)). Courts look for evidence
that an official’s misstatement was made with “ knowledge of its falsity or with
intent to mislead.” United States v. Marine Shale Processors, 81 F.3d 1329, 1350
(5th Cir. 1996). We are unaware o f any allegation that any USDA official know­
ingly misled these claimants. At most, it appears that any statements or impres­
sions were based on the official’s mistaken interpretation of the law. Courts have
been unwilling to estop the government in circumstances where individuals relied
on advice provided by government officials who would have been expected to
have the relevant knowledge and authority. See OPM, 496 U.S. at 420 (employee’s
erroneous advice that income will not cause reduction in benefits does not estop
government from reducing benefits); M errill, 332 U.S. at 385-86 (government
agent’s erroneous advice that farm er’s entire crop was insured does not estop
government from denying benefits on crops excluded from coverage by statute);
Ingalls, 976 F.2d at 937 (government cannot be estopped from assessing penalties
for a delay in payment even though a deputy commissioner sent plaintiff a letter
excusing any delay in payment); ATP, 860 F.2d at 1111-12 (SBA’s assurance
that it would guarantee payments of section 8(a) borrower was unauthorized and
therefore cannot estop government). To our knowledge, the alleged government
conduct at issue here is similar to that deemed insufficient to establish estoppel
in these cases. However, the application of equitable estoppel to a specific case
will depend on the facts present in that case.

V. Conclusion

ECOA’s statute of limitations applies to both administrative and litigative settle­
ments of ECOA claims, and it may not be waived by the executive branch.
Because USDA’s authority to pay compensatory damages is derived from the fact
that a court could award such damages, USDA may not settle administrative
claims after the statute of limitations has run. Section 3702 of title 31 does not
provide an independent basis of authority for the payment of administrative claims
filed after expiration of the ECOA statute of limitations. As for tolling, filing
an administrative claim does not toll the statute of limitations on a civil action.
While ECOA is subject to claims of equitable tolling or equitable estoppel in
appropriate circumstances, courts have rarely applied either doctrine against the
United States.

DAWN JOHNSEN
Acting Assistant Attorney General
Office o f Legal Counsel

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