Free Supplemental Brief - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ________________________________________ ) THE RICHARD A. FORSGREN REVOCABLE LIVING FAMILY PRESERVATION TRUST: CLAYTA FORSGREN, RICHARD A. FORSGREN, RICHARD E. FORSGREN, TERRI LYNN HAGER, and BARBARA ANN THOMPSON, TRUSTEES

No. 07-14 L Hon. Margaret M. Sweeney

DEFENDANT'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS On March 12, 2007, Defendant United States of America moved the Court, pursuant to Rules 12(b)(1) and 12(h)(3) of the Rules of the United States Court of Federal Claims (RCFC), to dismiss Plaintiff's Complaint for lack of jurisdiction. See Defendant's Motion to Dismiss for Lack of Jurisdiction and Memorandum in Support Thereof at 1, filed March 12, 2007 (Dkt. No. 6) ("Motion to Dismiss"). Pertinent to this supplemental memorandum, Defendant's Motion to Dismiss explains that the Court does not have jurisdiction over the two claims alleged in Plaintiff's Complaint, because the Complaint was filed after the expiration of the statute of limitations contained in 28 U.S.C. § 2501. Defendant's Motion to Dismiss is fully briefed and pending before the Court. See Plaintiffs' Response in Opposition to Defendant's Motion to Dismiss for Lack of Jurisdiction, filed April 19, 2007 (Dkt. No. 9) ("Plaintiff's Response"); Defendant's Reply Memorandum in Support of its Motion to Dismiss, filed May 14, 2007 (Dkt. No. 14) ("Defendant's Reply"). On January 15, 2008, the Court issued an order referencing the United States Supreme

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Court's recent decision in John R. Sand & Gravel Co. v. United States, 128 S. Ct. 750 (2008) ("John R. Sand II"). See Order, filed January 15, 2008 (Dkt. No. 19) ("Jan. 15 Order"). The Court observed that Plaintiff argued in its briefing on Defendant's motion "that the statue of limitations found in 28 U.S.C. § 2501 is not jurisdictional and thus the motion should fall under RCFC 12(b)(6)," and that the Plaintiff requested "that the Court should equitably toll the limitations period." Jan. 15 Order at 1. The Court stated that the Supreme Court's decision in John R. Sand II "bears on the parties' arguments" and directed the parties to file supplemental briefs addressing the impact of the Supreme Court's decision.1/ Jan. 15 Order at 1. In its Order, the Court noted that the Supreme Court's decision in John R. Sand II affirmed the judgment of the United States Court of Appeals for the Federal Circuit. See Jan. 15 Order at 1 (citing John R. Sand & Gravel Co. v. United States, 457 F.3d 1345 (Fed. Cir. 2006) ("John R. Sand I")). Because the Supreme Court affirmed the Federal Circuit's holding that 28 U.S.C. § 2501 is jurisdictional and not subject to equitable tolling, and because Plaintiff has acknowledged that its Complaint was filed after the expiration of the limitations period, the Court should grant the Defendant's Motion to Dismiss and dismiss the Plaintiff's Complaint for lack of jurisdiction. I. THE STATUTE OF LIMITATIONS CONTAINED IN 28 U.S.C. § 2501 IS JURISDICTIONAL. In its Response to Defendant's Motion to Dismiss, Plaintiff cites to Grass Valley Terrace v. United States, 69 Fed. Cl. 341 (2005), a case that predates the Federal Circuit's binding decision in

The parties also submitted supplemental briefs regarding the impact of Nicholson v. United States, 77 Fed. Cl. 605 (2007), which held that the government's inaction with respect to levees protecting New Orleans did not give rise to a taking after they failed because of Hurricane Katrina. See Defendant's Supplemental Brief Pursuant to the Court's Order of August 15, 2007, filed August 24, 2007 (Dkt. No. 17); Plaintiffs' Responsive Supplemental Brief, filed September 5, 2007 (Dkt. No. 18). -2-

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John R. Sand I, for the proposition that "the failure to file within the limitations period does not remove the Court's subject matter jurisdiction, but rather goes to the sufficiency of the claim asserted." Plaintiff's Response at 3 (citing Grass Valley Terrace v. United States, 69 Fed. Cl. at 346).2/ Plaintiff's argument does not address the Federal Circuit's explicit holding in John R. Sand I that "[t]he six-year statute of limitations set forth in section 2501 is a jurisdictional requirement for a suit in the Court of Federal Claims." 457 F.3d at 1354. Nor has Plaintiff provided the Court with any reason to overlook 28 U.S.C. § 2501's "longstanding pedigree as a jurisdictional requirement." John R. Sand I, 457 F.3d at 1355. In affirming the Federal Circuit's judgment, the Supreme Court in John R. Sand II distinguished 28 U.S.C. § 2501 from "statutes of limitations [that] seek primarily to protect defendants against stale or unduly delayed claims." 128 S. Ct. at 753. The Supreme Court explained that statutes of limitation may also serve other institutional goals, including "limiting the scope of a governmental waiver of sovereign immunity," and emphasized that "[t]he [Supreme] Court has often read the time limits of these statutes as more absolute." Id. The Supreme Court summarized that it "sometimes referred to the time limits in such statutes as `jurisdictional,'" and had "long interpreted the court of claims limitations statute as setting forth this second, more absolute, kind of limitations period." Id. at 753-54. Accord Caguas Cent. Fed. Sav. Bank v. United States, 215 F.3d 1304, 1310 (Fed. Cir. 2000) ("In the Court of Federal Claims, the statute of limitations is jurisdictional, because filing within the six-year period was a condition of the waiver

In its Reply to Plaintiff's Response, Defendant distinguished each of the additional cases Plaintiff cites for this proposition. See Defendant's Reply at 3-6. Because Defendant has explained that Plaintiff's reliance on these cases is misplaced in its Reply, it will not repeat that argument in this memorandum. It is enough to say that Plaintiff's argument wholly ignores subsequent binding precedent contrary to the position it advances in its Response. -3-

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of sovereign immunity in the Tucker Act."). In John R. Sand I, the Federal Circuit recognized that 28 U.S.C. § 2501 represents a jurisdictional prerequisite that must be satisfied before the Court of Federal Claims can adjudicate a plaintiff's claim, see 457 F.3d at 1354 ("Due to the jurisdictional nature of section 2501 it may not be waived."), and, in John R. Sand II, the Supreme Court has affirmed the Federal Circuit's judgment, see 128 S. Ct. at 757. Both of these Court's holdings are binding on the Court of Federal Claims. Finally, because 28 U.S.C. § 2501 is jurisdictional, Defendant's motion premised on the statute of limitations falls under the auspices of RCFC 12(b)(1).3/ Moreover, Plaintiff acknowledges that it has the burden of demonstrating that the Court has jurisdiction over the matter. See Plaintiff's Response at 5 (citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747-48 (Fed. Cir. 1988)). See also Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002) ("Plaintiff bears the burden of showing jurisdiction by a preponderance of the evidence.") (citing Thomson v. Gaskill, 315 U.S. 442, 446 (1942)). Among the jurisdictional proofs that Plaintiff must make, is a sufficient waiver of the United States' sovereign immunity. See Caguas Cent. Fed. Sav. Bank v. United States,

The application of RCFC 12(b)(1) to cases implicating sovereign immunity is also consistent with the manner in which federal courts of general jurisdiction apply Rule 12(b)(1) of the Federal Rules of Civil Procedure. See, e.g., Rakes v. United States, 442 F.3d 7 (1st Cir. 2006) (evaluating jurisdictional timeliness of a Federal Tort Claims Act suit against the United States in response to a Fed. R. Civ. P. 12(b)(1) motion); Trapp v. U.S. Marshals Serv., 139 Fed. Appx. 12, 14 (10th Cir. 2005) (unpublished) (affirming district court's Fed. R. Civ. P. 12(b)(1) dismissal based on sovereign immunity); Gulf Res. Am., Inc. v. Republic of Congo, 370 F.3d 65, 70 (D.C. Cir. 2004) (acknowledging that motion to dismiss premised on sovereign immunity was properly considered under Fed. R. Civ. P. 12(b)(1)); Waite v. Kopf, 41 Fed. Appx. 23, 24 (8th Cir. 2002) (unpublished) (citing Fed. R. Civ. P. 12(b)(1) and stating that "[t]he district court correctly acknowledged that it lacked subject matter jurisdiction because of the United States' sovereign immunity"); Bennett v. United States, 102 F.3d 486, 488 n.1 (11th Cir. 1996) (noting that dismissal on sovereign immunity grounds should be under Fed. R. Civ. P. 12(b)(1)). -4-

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215 F.3d at 1310; Bissell v. United States, 41 Fed. Appx. 414, 416 (Fed. Cir. 2002) (unpublished) (holding that plaintiff bears the burden to prove that 28 U.S.C. § 2501's prerequisites are satisfied); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 748 (citing Jascourt v. United States, 207 Ct. Cl. 955 (1975), for the proposition that "plaintiff bears burden of establishing waiver of sovereign immunity"). Accordingly, to survive a motion to dismiss under RCFC 12(b)(1), it is incumbent on Plaintiff to prove that the application of 28 U.S.C. § 2501 does not preclude its claims' jurisdictional timeliness. See Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (holding that "the burden of establishing jurisdiction, including jurisdictional timeliness, must be carried by the [plaintiff]"). As explained in Defendant's Motion to Dismiss, Plaintiff cannot meet its burden. See Motion to Dismiss at 10-13. II. 28 U.S.C. § 2501 IS NOT SUBJECT TO EQUITABLE TOLLING. Plaintiff does not contest that its Complaint was filed more than six years from the accrual of its Claims, but rather asserts that the Court should apply equitable tolling to preserve its claims.4/ See Plaintiff's Response at 8. After the Supreme Court's holding in John R. Sand II, this request must be denied as a matter of law. Even if the circumstances of the Plaintiff's untimely filing warranted the application of equitable tolling, which they do not, it is now firmly established that 28 U.S.C. § 2501 is not subject to equitable tolling.

Plaintiff concedes that Claim One in its Complaint "may indeed be time barred," but argues that the Court should employ equitable tolling to preserve that claim. Plaintiff's Response at 9. Plaintiff asserts that Claim Two in its Complaint is a unique and separate claim that is not time barred. See id. at 15-19. As explained fully in Defendant's Motion to Dismiss, Claim One and Claim Two arise from a single event -- the alteration of the Civilian Conservation Corps ponds -- and constitute one cause of action for statute of limitations purposes. See Motion to Dismiss at 18-19. Because Defendant denies that Claim Two is a separate, subsequent claim, its arguments in Part II of this memorandum apply to both of Plaintiff's claims. -5-

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At the time Plaintiff filed its Response on April 19, 2007, the Federal Circuit had not resolved definitively the question whether equitable tolling is potentially available under 28 U.S.C. § 2501. See, e.g., Martinez v. United States, 333 F.3d 1295, 1318 (Fed. Cir. 2003), cert. denied, 540 U.S. 1177 (2004) (declining to decide whether 25 U.S.C. § 2501 was subject to equitable tolling and acknowledging that "the matter is not free from doubt"). In John R. Sand II, however, the Supreme Court put the matter to rest, re-affirming that 25 U.S.C. § 2501 is a jurisdictional requirement that does not allow for equitable tolling. John R. Sand II, 128 S. Ct. at 754-55. In reaching this conclusion, the Supreme Court remarked that the rule was well settled. See id. at 754 ("Over the years, the Court has reiterated in various contexts . . . similar views about the more absolute nature of the court of claims limitations statute."). Indeed, after reviewing its prior jurisprudence related to equitable tolling of 28 U.S.C. § 2501's predecessor statute, the Supreme Court unambiguously stated that "it is not surprising that nearly a decade after the revision [of 28 U.S.C. § 2501], the Court . . . again repeated that the statute's limitations period was `jurisdiction[al]' and not susceptible to equitable tolling." Id. at 5 (emphasis added). In sum, the Supreme Court has ruled expressly that, because 28 U.S.C. § 2501 is jurisdictional, this Court may not "consider whether certain equitable considerations warrant extending [the] limitations period." John R. Sand II, 128 S. Ct. at 753. Accord Bowles v. Russell, 127 S.Ct. 2360, 2366 (2007) (holding that a court may not invoke equitable exceptions to a jurisdictional limitations bar, because the "Court has no authority to create equitable exceptions to jurisdictional requirements"). The Court should go no further. The Plaintiff concedes that its claims are untimely, equitable tolling is unavailable to preserve its claims, and therefore its Tucker Act claims must be dismissed.

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III.

CONCLUSION. The Court has asked the parties to address the impact of the Supreme Court's decision in

John R. Sand II to the Plaintiff's arguments in opposition to Defendant's Motion to Dismiss. In John R. Sand II, the Supreme Court affirmed the Federal Circuit's judgment in John R. Sand I, and both precedents are binding on the Court of Federal Claims. Based on these rulings, the Court must hold that 28 U.S.C. § 2501 is jurisdictional and that Plaintiff bears the burden to prove compliance with the statute's jurisdictional prerequisites. Further, equitable tolling cannot be applied to preserve Plaintiff's untimely claims. Accordingly, the Court should grant Defendant's Motion to Dismiss and dismiss Plaintiff's Complaint for lack of jurisdiction. Respectfully submitted, Dated: February 5, 2008 RONALD J. TENPAS Assistant Attorney General Environment & Natural Resources Division

/s/ Bruce K. Trauben BRUCE K. TRAUBEN Environment & Natural Resources Division Natural Resources Section United States Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 Tel.: (202) 305-0238 Fax: (202) 305-0506

OF COUNSEL: Steven M. Hoffman Attorney Office of the Solicitor Rocky Mountain Regional Office U.S. Dept. of Interior 755 Parfet Street, Room 151 Lakewood, Colorado 80215

Diane M. Connolly Deputy Regional Attorney Office of the General Counsel Mountain Region U.S. Dept. of Agriculture Post Office Box 25005 Lakewood, Colorado 80225 -7-