A Statue for Jacob

by Peter Murphy

  But that was the best part of a century after Jacob had made his loans. That’s what had blindsided me. I had made the unarticulated assumption that his claims had to be judged as at the time they had accrued, and if there was no court to sue in then, how could there be a statute of limitations? It was meaningless. So what if Congress passed a statute of limitations to regulate access to the Claims Court? How could that be allowed to prejudice Jacob, when he, or his heirs, couldn’t possibly have filed suit within six years of his claim becoming due? How could his entitlement be removed retrospectively? If his claim was barred long before he had any way to pursue it, how could that be just or fair? What would have happened to the rule of law if that were allowed? And naively, I must have assumed that in a world where fairness held sway, there was no need to worry about the statute of limitations. And in a world in which fairness held sway I would have been right.

  But now, I saw belatedly that there were two ways of looking at it. The second way of looking at it was that when Jacob’s debt became due, there was no way to enforce it. Eventually a procedure was provided to enforce debts against the government, but it came too late to help Jacob. When Congress created the Claims Court, they didn’t abandon the ‘King can do no wrong’ principle. They simply created a limited exception to it. You could sue the government, but only in the government’s court, on the government’s terms and subject to the government’s rules. One of those rules might be that you could sue only in certain kinds of case; another might be that you couldn’t sue in any case if you didn’t file within six years of your claim becoming due. What was wrong with that? I knew before I even opened the envelope what Dave’s motion to dismiss was going to say to the court. What I didn’t know, or even have the first clue about, was what argument I could make against it that might have a snowball’s chance in hell of persuading Judge Morrow to keep the case alive.

  Arya, to whom I ran for comfort as soon as I could escape from lunch, saw immediately why the government’s position was unfair. I had called into the office and told Arlene I wasn’t feeling well, which was true, and that it must have been caused by something I had eaten at Benny’s, which wasn’t. She told me to go home and get some rest, get myself ‘doctored’ if I had to, and not to worry about coming into the office until the next day. She assured me that there was nothing going on that wouldn’t wait until then, although I thought I detected a slight hesitancy in her voice as she said it. I felt a momentary anxiety, but in the state I was in, it could have just been my imagination. Either way, I was in no fit condition to be in the office.

  I settled back in the armchair, inhaling the Neroli incense as if it were pure oxygen, and clasped the arms of the chair, anticipating the wonderful pain to come as Arya took hold of my feet and her fingers began their gentle probing. But there was to be no pain today. Perhaps because of what her fingers reported back to her, she changed tack and gave me a gentle, unhurried massage with a touch of oil. Gradually I relaxed back into the chair and closed my eyes. For the first time since leaving Benny’s my body began to unwind a little. I explained to Arya what a fool I’d been, and how my career was over, and how I should have become a doctor, and how I’d failed to see what any first-semester law student would have seen ten seconds after Sam had told her the story, and why I was a complete failure who should be locked away for her own protection and that of the public. Eventually I started whining about how unfair the van Eyck family’s situation was.

  ‘So,’ Arya asked, ‘if the government’s right, Jacob was out of luck before they even set up a court for him to sue them in?’

  ‘That’s the way it seems,’ I said.

  ‘So looking on the bright side, they can’t blame you for missing the deadline, can they?’

  ‘They can blame me for wasting Sam’s time, and the time of all those people in New Orleans, by starting a case which has no hope of succeeding. I could have prevented that.’

  Arya was silent for some time, her hands continuing to work their magic.

  ‘Let me ask you something, Kiah,’ she said, ‘because I have a certain image of Sam in my mind based on what you’ve told me about her, and somehow I don’t see her blaming you for any of this. Tell me: if you had foreseen this and you had told Sam before you started the case, how do you think she would have reacted to it? Would she have folded and said, “OK, well, let’s not bother, then?” Or would she have said, “OK, let them hide behind their statute of limitations; let them show the world how cheap and unprincipled they are; let them show the world they don’t give a damn about recognising an American hero?” What do you think she would have said?’

  I smiled.

  ‘She would have said, “Full speed ahead and damn the torpedoes.”’

  ‘That’s what I would have expected of her, too.’

  ‘But the torpedoes would have got us anyway.’

  ‘Well,’ she said, ‘let’s think about that for a moment. Let’s think about what you might say to the judge about it. First, how is it fair that Jacob is owed a lot of money by the government, and he has never had the chance to sue for it? It’s not that he allowed the deadline to pass. He never even had the right. How is that fair?’

  ‘It’s not,’ I replied.

  ‘Well then…?’

  I sighed. ‘Arya, one of the first things they teach you in law school is that there is no rule that the world has to be fair. You can’t get up in court and say to a judge, “But, Your Honour, that’s not fair.” It’s not a legal objection, and you can’t sue someone for being unfair.’

  Her hands stopped for a moment as she weighed up what I had said.

  ‘How odd,’ she replied. ‘You know, that does surprise me. I’m not a lawyer, of course, and maybe I’m just being naïve, but I would like to think that’s the first thing a judge would want to know: is what I’m being asked to do fair or not?’

  Her hands resumed their work, and I was beginning to feel drowsy.

  ‘The problem is,’ I replied, ‘how do you measure fairness? It’s not an objective standard, is it? People can legitimately disagree about whether something’s fair or not; what seems fair to one person may seem unfair to another. The courts need a more consistent standard to judge by.’

  I must have been struggling to sit up to make my point, because Arya was pushing me back down into the chair, holding my shoulder ever so gently.

  ‘No, don’t fight it. Lean back. Go on. Lean back. Let yourself relax… Good girl.’

  Gratefully, I surrendered to the chair, and closed my eyes again. This time they were heavy, and I didn’t try to open them again.

  ‘You may be right, Kiah,’ she said quietly, after some time. ‘But there are some cases where the fairness is all one way, and it’s plain for everyone to see. You think that’s true of Jacob’s case, and it is.’

  I was drifting away by now.

  ‘And because that’s true, I believe your judge is going to want to help you if he can,’ she said. ‘So perhaps your job is to show him how to do that in terms of the law; to present him with a legal way to allow him to be fair.’

  When I came to, it was after nine o’clock in the evening. I was still in the armchair. Arya had covered me with a blanket and dimmed the lights. She was lying on her sofa, reading a book. I stretched, lifted myself slowly out of the chair, and looked around for my shoes, making as if to go home. Arya shook her head. She put her book down, took me into the kitchen and fed me soup and toast, and then put me to bed in her spare room. I went out again like a light.

  27

  I awoke the next morning just after five. Arya was still in bed. I went in quietly, and kissed her goodbye. She squeezed my hand and told me she loved me, then went back to sleep. I made my way home to get changed. I still felt shattered and I wasn’t relishing the thought of the next round of embarrassment that was bound to come that morning, but the immediate trauma of my lunch with Dave had vanished,
and my brain had started to work again. I still couldn’t come up with a single argument to present to Judge Morrow as a legal way to be fair, but I wanted to get a head start on some research, if for no other reason, to reassure Sam – and myself – that I was on the case.

  I started with a history of the Claims Court I had bought to provide myself with some background once I started to build up a substantial practice in the court and was submitting written briefs on a regular basis. It was surprisingly informative. The first thing I discovered was that the Act of Congress that created the court in February 1855 didn’t include any statute of limitations. But neither did it give the court very much power. Its jurisdiction was limited to contractual claims against the government, and while it could examine cases brought before it and make findings, the court had no power to issue final judgments. Congress clung on to the right to grant or refuse relief when it received the court’s findings. Eighty years on from independence the ‘King’ was still keeping a tight grip on the reins. In fairness, it didn’t take the government long to realise what a silly arrangement that was – a court that can’t issue judgments doesn’t deserve the name – and in 1861 President Lincoln called for the court to be given the power to issue its own judgments. Congress granted that power by the Act of March 1863. In 1887 there was another important change. The jurisdiction of the court was expanded considerably to give it jurisdiction, among other things, over claims based on the Constitution.

  The first time there was any mention of a statute of limitations was in 1863. The Act of that year established the six-year period, and allowed plaintiffs whose claims had accrued more than six years before that a further three years to file. I couldn’t resist an ironic smile. Dave was wrong. We weren’t late by over 200 years. It wasn’t much more than 150. But it got even better. Part of our claim was based on the Constitution, the taking of private property for public use without compensation, and we couldn’t have sued for that until the 1887 Act came into effect. That Act also had a six-year limitation period. So Dave was even more wrong: the period in our case shouldn’t have started to run until March 3, 1893. So we were only late by something approaching 130 years. My satisfaction at proving Dave wrong about all that was, obviously, short-lived. The statute of limitations doesn’t care whether you’re late by 200 years or twenty-four hours. When you’re late, you’re late. This wasn’t how I was going to find Judge Morrow a legal way to be fair.

  Sam had committed to helping Arlene in the office at least two days a week, and they came into my office together to find out how I was, just after eight thirty. There was no point in procrastination. I sat them both down with a cup of coffee and broke the news. I tried to say I was sorry, but Sam smothered me with a hug before I could complete the sentence. There was a stunned silence for a while.

  ‘Lord have mercy,’ Arlene said eventually. ‘I can’t believe we didn’t think of that, y’all. I mean, that’s like offensive pass interference. It blows the whole play, with a loss of down.’

  ‘It blows the whole game,’ I replied.

  ‘I’m not ready to give up,’ Sam said.

  I smiled, thinking of Arya.

  ‘There must be something we can do about this. It’s just so unfair.’

  There was that word again.

  ‘I know,’ I replied. ‘What I need to do is to translate that into a legal argument Judge Morrow can hang his hat on. I’m not there yet, but I’ve made a start this morning. We have seven days – well, six now, actually – before the hearing, and I’m going to spend all that time trying to come up with something. It just has to be something arguable at this stage, something to get us past the automatic bar. I’m going to do my best, Sam, I promise. I’m with you. We’re not giving up.’

  The room went quiet again. I fiddled with my pen. Arlene was examining her nails, a recent manicure with a violent red polish. Sam was looking absently up at the ceiling. She suddenly came back to us and saw that Arlene and I were looking at her.

  ‘I’m sorry. I was miles away. I was thinking about something.’

  ‘What? All those family members in New Orleans?’

  She shook her head. ‘No. It was something from the research I did on the Continental Congress and the war loans before I came to you. I read something… but I just can’t place it.’

  ‘Go on,’ I said encouragingly.

  ‘No, it’s gone. I’m going to have to hit the library again. There was something that might be helpful. I’ll try to find it again.’

  ‘All contributions gratefully received,’ I said.

  Arlene ran her hands through her hair.

  ‘Hun, Lord knows, this has blown us away like a tumbleweed in a West Texas dust storm, and I really hate to bother y’all with anything else, but…’

  ‘Go for it. You might as well,’ I replied. ‘I don’t think I can feel any worse this morning.’

  She grimaced. ‘I really wouldn’t be too sure about that, hun.’

  I brought my hands up to cover my face.

  ‘Oh, God. What? What?’

  She pushed a letter across the table in my direction.

  ‘You’re being audited,’ she said, ‘by the IRS. For the last five years.’

  ‘What?’

  I scanned the letter and threw it angrily aside.

  ‘Oh, for God’s sake, is this some kind of joke?’

  ‘I’ve called Reg,’ she added. ‘He’s all set to go. He says not to worry, everything’s in order, but it’s going to be hell on wheels having those guys all over the office, turning everything upside down, for a week or more.’

  Reg is my CPA. He’s a bit nerdy, but I like that in a CPA. He’s a brilliant accountant, and there’s not much he doesn’t know about income tax. All the same, this was the last thing I needed to hear. Having the IRS systematically going through five years of tax records in the small space we had, taking up my time and Arlene’s, would virtually bring us to a standstill. Bring us to a standstill. I paused to meditate on that thought, and the light dawned. I glanced at Arlene, and saw that the same thought had long since gone through her mind.

  ‘I’ve never been audited before,’ I said. ‘Now, I get audited for the past five years? A couple of weeks after I file a big lawsuit against the federal government? Is that a coincidence, or what?’

  ‘I sure as hell don’t think so,’ Arlene replied, ‘and neither does Powalski. Powalski thinks the IRS is running interference for the Department of Justice. But I’ll make sure to put them off for at least a couple of weeks, ’cause if Jesus tarries and the creek don’t rise, y’all are going to be in the fight of y’all’s life six days from now. The IRS don’t have a dog in that fight, and I ain’t about to let them put a leash on ours. No, ma’am.’

  I sat back in my chair and pondered for a while.

  ‘You know what?’ I said. ‘Bad as this is, there’s also something really strange about it. Don’t you think?’

  ‘Strange, how?’ Arlene asked.

  ‘Well, according to Dave Petrosian, Justice figures they’ll have this all wrapped up next week when Judge Morrow grants their motion to dismiss. They don’t think we have any answer to it, and they may be right. So why would they need to resort to this? Why now?’

  ‘Perhaps somebody at Justice isn’t quite as convinced as Petrosian that they’re going to win?’ Sam suggested.

  ‘Maybe so,’ I replied.

  ‘They’re messing with your mind, hun,’ Arlene said. ‘They want to take your mind off of next week. Or else it’s a reminder of how much power they have. And if y’all do win next week, look out. This is just the beginning. I’m telling you, hun, it’ll be Katy bar the door then.’

  28

  I can’t give you a full account of how I spent the next few days. In many ways it was an endless meandering cycle of misery and depression. We weren’t saying much around the office. There was a lot going on. S
am was there every morning working with Arlene, and ironically, plaintiffs were signing up and offering help on a daily basis, even though we had told everyone by email that the government’s motion to dismiss was coming up, and weren’t sure we would even have a case left to pursue in another week. Jeff Carlsen and Ed van Eyck had both called and offered any help they could give as attorneys, though neither had come up with an answer to the statute of limitations. Kate Banahan had been as good as her word, and a nice young man called Eric from her Wills and Trusts class was desperately trying to make himself useful, while driving Arlene crazy by giving the impression that he had never seen the inside of an office before. Worst of all, Reg was beavering away on my tax records in a corner of my office, so the audit was never far from my mind. A lot was going on, but most of it was going on in a subdued silence. In the afternoons, Sam went to the library, or so she said. I wasn’t sure whether she really was going to the library, or whether she just couldn’t stand being in the office any more. I wasn’t sure how long I could stand it myself.

  By the time I had unburdened myself to Sam and Arlene, and we had recovered a little from the blow, Tuesday was all but gone. On Wednesday morning, I decided to make a positive start. I opened a new file in the van Eyck folder on my laptop and boldly typed in the words, ‘Plaintiff’s Reply to Government’s Motion to Dismiss based on Statute of Limitations’. For two hours or so I typed non-stop. I began with a statement of the facts, which was pretty much the same as Dave Petrosian’s statement of the facts, except that I treated them as facts in contrast to Dave’s insinuation that they belonged more appropriately in the fiction section. In the second section I traced the history of the Claims Court and its statute of limitations, at the end of which I triumphantly demolished Dave’s assertion that we had missed the deadline by 200 years, and demonstrated conclusively that it was close to 130 years, tops. I began the third section with the words, ‘It follows, therefore…’ At which point I hit a brick wall and stopped in mid-sentence.