The Supreme Court on Monday morning added one new case to its docket for the 2022-23 term, a technical dispute over the binding nature of the statute of limitations for a federal property law. The justices also invited the federal government to submit its views in a dispute over immunity for corporations that work on behalf of foreign governments.
The justices granted review in Wilkins v. United States, in which they will decide whether the 12-year statute of limitations to bring a lawsuit under the federal Quiet Title Act is jurisdictional – that is, it goes to the court’s power to hear the case and cannot be waived – or instead a “claims-processing rule,” a procedural rule that can be waived. The question arises in a case filed in 2018 by two Montana landowners, who argue that a roadway easement across their land held by the federal government does not give the public access to the road. A lower court ruled that the landowners filed their lawsuit too late and that the statute of limitations is jurisdictional.
The justices invited the U.S. solicitor general to file a brief expressing the federal government’s views in NSO Group v. WhatsApp, a lawsuit that began in 2019 when WhatsApp, the encrypted communication service, accused NSO Group, which develops and distributes spyware, of sending malicious code over WhatsApp servers to WhatsApp users. NSO Group asked the trial court to throw out the case, arguing that it was entitled to sovereign immunity because it had acted on behalf of an unidentified foreign government. The trial court rejected that argument, and the U.S. Court of Appeals for the 9th Circuit agreed. The 9th Circuit explained that because NSO Group did not qualify as a foreign state, it could not seek immunity under the Foreign Sovereign Immunities Act, which generally bars lawsuits against foreign governments in U.S. courts. And the FSIA is the only source of immunity for such entities, the 9th Circuit concluded; NSO Group is not entitled to immunity through some other source, such as federal common law.
NSO Group came to the Supreme Court in April, asking the justices to weigh in on whether it can obtain immunity under the common law when it is not eligible for immunity under the FSIA. There is no deadline for the solicitor general to file her brief.
The justices will meet again for a private conference on Thursday, June 9. The court will release orders from that conference at 9:30 a.m. on Monday, June 13.
This post is also published on SCOTUSblog.