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Construction Dispute Turns On...War Decision

By Stony Olsen

Construction disputes seldom lead to sexy lawsuits, aside from the occasional ‘’Who’s at fault for this bridge falling down?’’ case. But in
one recent case, war came into the picture.

09/03/08 States or any agency thereof in any manner, whether by

In fact, a US judge had to
determine when and where the US
is at war in order to resolve this
particular construction case.
Of course, this wasn’t just any
construction project we’re talking about. The project in
question, in fact, is the ‘’Big Dig,’’ the massive highway project
that consumed Boston for many years.
conspiracy or not…shall be suspended until three years
after the termination of hostilities as proclaimed by the
President or by a concurrent resolution of Congress.
That would, indeed, toll the statute of limitations, depending
on when the United States is/was at war.
So the judge, Judge Richard Stearns, was faced with the task
of deciding legally when the US is/was at war — all to settle a
highway contractor dispute.

In May of 2006, some former employees of a concrete supplier
to the Big Dig were indicted on a number of charges, among
which was submitting fraudulent reports to the government.
Not very sexy, so to speak.
But the employees argued that the activity occurred in 2001,
which, they said, raises that old civil procedure problem: the
statute of limitations.
Indeed, the statute of limitations is five years, so the
government could have been barred from prosecuting the
employees if their argument was accepted. However, the
prosecutor argued that the statute was tolled by the ‘’Wartime
Suspension of Limitations Act.’’ Said act states that:
When the United States is at war the running of any
statute of limitations applicable to any offense (1)
involving fraud or attempted fraud against the United
What was Judge Stearns’ conclusion? That the US was at war
with Afghanistan until December 22, 2001, and at war with
Iraq until May 1, 2003. This means that for the contractors,
the statute was tolled, and the government could proceed with
the charges.
However, the more interesting application is that the judge has
concluded that the US hasn’t been at war since. The judge did
note that this was a legal definition, and concluded that the
‘’war on terror’’ isn’t something that has been legally declared.
The government, meanwhile, did not try to claim that the war
on terror is a war for the purposes of the case.
In any event, we now have a legal opinion on when the US
has been at war. And it will probably be quite a controversial
opinion, too.

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