Obama administration claims a right to hide evidence before Supreme Court
Kyndra Miller Rotunda and Rear Admiral James Carey (Ret.) and Bob Carey and Joshua Flynn-Brown • | December 10, 2014 | 5:00 am
Today, the Supreme Court will hear oral arguments in United States v. June, a case that has received little attention, but will have far-reaching implications. The case boils down to this: Can the federal government actively conceal material evidence in order to escape liability? Common sense says no. The Obama administration says yes.
June involves the Federal Torts Claims Act (FTCA) and a doctrine called “equitable tolling.” Prior to 1946, the doctrine of sovereign immunity prohibited citizens from filing suit against the government. That all changed in 1946, when a military plane crashed into the Empire State Building, killing and injuring many civilians. Congress responded by enacting the FTCA, which waives sovereign immunity and allows citizens to sue the government in instances.
However, claimants must file a claim within two years of injury. Equitable tolling freezes those two years under certain considerations, like government officials hiding pertinent facts. Courts across the country have consistently applied the doctrine of equitable tolling to FTCA claims.
In the June case, a minor child was killed in a car crash when a median barrier failed. The barrier had failed safety crash testing; the government knew but installed it anyway. When the plaintiff investigated, the government would not make federal employees — who knew the truth — available for deposition until after the two year deadline to file. The government now argues that equitable tolling should not apply to claims brought under the FTCA. It maintains that it can avoid liability by hiding evidence and waiting for the clock to run out.
The June case raises serious issues for every government agency, especially the Veterans Administration, given the recent scandal where VA employees engaged in fraud and falsified records. If no whistleblower had come forward, VA employees could have waited out the clock. The VA has already demonstrated a propensity toward dishonesty and covering up. It needs no further incentives.
Importantly, some injuries are latent and may not appear for even years after the fact. Take, for instance, the example of veterans exposed to HIV and hepatitis by the VA during routine colonoscopies and dental work. Older vets, having no reason to be regularly tested, may not find out about their exposure until years later when HIV blossoms into full blown AIDS or when their livers malfunction. Moreover, in 2011 a Pittsburgh VA hospital’s water supply tested positive for Legionnaires disease but the hospital did not notify patients for over a year. Only after six patient deaths and 22 infections did the VA facility warn patients and distribute bottled water.
If government has its way in June, the VA and other government agencies would get off scot-free in similar situations. Say goodbye to transparency and the FTCA as we know it. A wrongdoer should not benefit by secrecy calculated to hide the truth and deprive harmed persons of their constitutional right to due process. Sunshine is the best disinfectant and the Supreme Court must rein in government abuse in June. After all, our laws do not allow private citizens to benefit from dishonesty and the same standard should be applied to government, too.
Ms. Miller Rotunda is Professor of Military and International Law at Chapman University and a former Major in the US Army JAG Corps; Admiral Carey is the President of the National Defense Committee; Mr. Carey is Executive Director of the National Defense Committee and a Captain in the Naval Reserves; Mr. Flynn-Brown is an attorney that specializes in military and veteran law. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions for editorials, available at this link.
http://www.washingtonexaminer.com/obama-administration-claims-a-right-to-hide-evidence-before-supreme-court/article/2557143
