The Supreme Court heard oral argument in two cases on Wednesday, both involving whether equitable tolling applies to claims against the federal government under the Federal Tort Claims Act. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. For more about this method, see my post on last Term’s Aereo case.  For all of my predictions this Term, click here.

U.S. v. Wong asks whether the six-month time bar for filing suit in federal court under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is subject to equitable tolling.

The Court asked the Respondent (Wong) 28 questions, 11 fewer than asked of the Petitioner (Solicitor General). The question disparity suggests a win for the Respondent, who argued for affirming the Ninth Circuit’s decision that the statute of limitations under the Federal Tort Claims Act is not jurisdictional and equitable tolling may be applied to it.

However, the picture gets more complicated looking at the question count per Justice. There’s a possible split along ideological lines. Chief Justice Robert and Justice Kennedy asked 8 and 4 questions to the Respondent (Wong), respectively, but no question to the Petitioner (Solicitor General). Justice Alito asked one more question to the Respondent. On the other hand, Justices Ginsburg and Kagan asked 7 and 10 more questions to the Petitioner, respectively. Justices Breyer and Sotomayor each asked 2 more questions to the Petitioner. Defying the ideological pattern, Justice Scalia asked 3 more questions to the Petitioner. Although 5 Justices asked the Petitioner more questions (suggesting a win for the Respondent), it is not clear whether Justice Scalia’s questions indicate a leaning to the Respondent’s side. In U.S. v. June, the companion case argued afterwards (see below), Justice Scalia asked more questions to the Respondent’s side.

The overall and individual question counts suggest a close case, probably a 5-4 decision. Justice Kennedy may be the swing vote, and his questions might suggest a leaning to the Petitioner (Solicitor General). However, I will stick with the overall question count and predict a win for the Respondent (Wong).

Figure 1.

The second case, U.S. v. June, asks whether the two-year time limit for filing an administrative claim with the appropriate federal agency under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is subject to equitable tolling.

This question count again favored the Respondent. The Court asked the Respondent (June) 17 questions, 9 fewer than asked of the Petitioner (Solicitor General). The overall question disparity suggests a win for the Respondent, who argued for affirming the Ninth Circuit’s decision.

However, just as in U.S. v. Wong, the picture gets more complicated looking at the question count per Justice. Chief Justice Roberts again asked the Respondent more questions (+4). Justices Ginsburg, Breyer, and Kagan again asked the Petitioner more questions (+4, +5, +4, respectively). Several Justices asked more questions to the other side compared to the side they asked more questions in Wong: Justices Scalia and Sotomayor asked the Respondent more questions (+2 and +1, respectively); and Justice Kennedy asked the Petitioner more questions (+1). Justices Thomas and Alito asked no questions. The pattern still suggests a possible ideological split. As in Wong, I will stick with the overall question count and predict a win for the Respondent (June).

Figure 2.