A food safety case is on track to be the vehicle for deciding whether federal judges have gained any extra power to stop time during the coronavirus pandemic.

It rises out of the United States versus Paul Kruse, the retired president of Blue Bell Creameries. The government is attempting to prosecute Kruse on conspiracy and fraud charges connected with the deadly 2015 listeriosis outbreak that temporarily shut down the iconic Texas ice cream maker.

In normal times, the government would have had five years to bring those charges and on the surface, it appears that time has expired. Defense attorneys Chris Flood of Houston and John D. Cline of San Franciso contend the clock has run out and they’ve filed a motion to dismiss all the charges.

At issue is a legal debate about whether the statute of limitations was “tolled,” meaning whether time was stopped for a while in calculating when the five-year period ran out.

During the current national emergency, the nation’s 94 district courts have each been making up their own rules, but most commonly postponing jury trials, dismissing Grand Juries, and stopping the clock on Speedy Trial rules and Statutes of Limitation deadlines for filing criminal cases.

Speculation about what the courts were doing was not long in coming. Four top attorneys from Winston & Strawn LLP, Chicago’s oldest law firm, addressed the topic in a Law360 article published May 7.

“Blanket tolling of federal statutes of limitations, however, have rarely, if ever, occurred,” the four attorneys wrote. “As discussed in this article, authority for this type of blanket, across-the-board tolling does not exist under the present circumstances. Accordingly, based on our analysis, the blanket tolling orders issued by the federal district courts in Texas and the Middle District of Louisiana may not be legally valid.

“Federal courts may toll criminal statutes of limitations under only very limited circumstances. They do not appear to have the authority to issue blanket tolling of all criminal statutes of limitations. Federal courts also may equitably toll some civil statutes of limitations in individual cases, but just as in criminal actions, they seemingly lack the authority to issue orders for the blanket tolling of all civil statutes of limitations.”

Flood and Cline this week responded to the government’s opposition to their motion before federal Judge Robert L. Pitman to dismiss all charges against the 66-year-old Kruse. Pitman could rule from the written arguments now before him or opt to hear oral presentations.

“As the government correctly notes, the parties agree that a five-year statute of limitations applies to all counts under 18 U.S.C. § 3282(a), and they agree on the facts concerning the statute of limitations,” Flood and Cline wrote.

“The motion (to dismiss) boils down to two purely legal issues: First, can equitable tolling apply to extend the period in which federal criminal charges may be brought–and, if so, does it apply wher (as here) the defendant is not responsible for the delay in initiating the charges?

“Second, does the filing of an information purporting to charge felonies, without a waiver of indictment by the defendant, ‘institute’ the information for purposes of § 3282(a)? For the reasons set out in Kruse’s motion and in this reply, the answer to both questions is no. The charges against Kruse must be dismissed as time-barred,” they argue.

Flood and Cline said the chief judge for the U.S. District Court for Western Texas has no power to “suspend and toll” criminal statutes of limitation and said “even if he did” the statute of limitations has run out on all counts.

“As expected, the government invokes the doctrine of equitable tolling to defend the Chief Judge’s orders purporting to ‘suspend’ and ‘toll’ all statutes of limitations from March 16 through June 30,” they write.

“But only one case has applied equitable tolling to extend the time in which federal criminal charges may be brought, and that case — the United States v. Reguer, 901 F. Supp. 525 (E.D.N.Y. 1995) — was vacated on appeal, as the government points out, G. Opp. 16 n.1 (citing the United States v. Podde, 105 F.3d 813, 818-21 (2d Cir. 1997)).

“With Reguer eliminated, the parties have not found a single federal case that has applied equitable tolling to extend the time in which an indictment must be obtained. The government asks this Court to become the first in the 230-year history of 18 U.S.C. § 3282(a) to do so. And it asks the Court to adopt a tolling rule that Members of Congress from across the political spectrum rebuffed when the Department of Justice proposed it just a few months ago. D. Mem. 10-11. The Court should reject the government’s arguments.”

Judge Pitman dismissed the same charges against Kruse earlier this year when they were brought as criminal information. He ruled that because Kruse did not give up his right to a Grand Jury indictment, the District Court lacked jurisdiction to hear the case.

The four Winston & Strawn LLP attorneys, Abbe David Lowell, Christopher D. Man, Lisa C. Chan and Leah Romm, predicted in their article in May that “these blanket orders will no doubt be challenged when a defendant whose alleged acts would have expired before charges were brought is now charged under this newly stated authority. It is questionable whether a challenge, e.g., a declaratory judgment, to the orders that have been entered could occur outside a specific case given the requirement of standing.

“When such a challenge is made, research as to any existing authority and failed attempts to create new authority would strongly suggest that blanket orders such as those entered in Texas and the Middle District of Louisiana are not valid and will be successfully challenged in upcoming cases,” they concluded.