Free Reply to Response to Motion - 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. 07-14L Hon. Margaret M. Sweeney

DEFENDANT'S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS MATTHEW J. McKEOWN Acting Assistant Attorney General Environment & Natural Resources Division BRUCE K. TRAUBEN Natural Resources Section Environment & Natural Resources Division U.S. Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 Tel: (202) 305-0238 Fax: (202) 305-0267 OF COUNSEL: Steven M. Hoffman Attorney Office of the Solicitor Rocky Mountain Regional Office United States Dept. of Interior 755 Parfet Street, Room 151 Lakewood, CO 80215 Dated: May 14, 2007

Diane M. Connolly Deputy Regional Attorney Office of the General Counsel United States Dept. of Agriculture Mountain Region P.O. Box 25005 Lakewood, CO 80225

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TABLE OF CONTENTS

I.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Plaintiff Bears the Burden of Persuasion on Jurisdiction Because a Motion to Dismiss Grounded on the Statute of Limitations Is Jurisdictional and Implicates RCFC 12(b)(1), Not 12(b)(6) . . . . . . . . . . . . . . . 3 Plaintiff Has Not Met Its Burden of Proof to Show that the Statute of Limitations Should Be Equitably Tolled . . . . . . . . . . . . . . . . . . . . . . . 7 1. Plaintiff's Novel Tolling Argument Is Not Supported by the Law or the Facts and Should Be Rejected . . . . . . . . . . . . . . . . . . . 8 Plaintiff's Attempt to Shift Blame to the United States for Its Failure to Timely Correct Its § 1500 Problem Is Frivolous at Best . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Claim Two also Is Time-Barred Because It Asserts the Same Cause of Action as Asserted in Claim One . . . . . . . . . . . . . . . 16

B.

2.

3.

III.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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TABLE OF AUTHORITIES CASES Alliance of Descendants of Tex. Land Grants v. United States, 37 F.3d 1478 (Fed. Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 Andrews v. Principi, 351 F.3d 1134 (Fed. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Ariadne Fin. Servs. Pty. v. United States, 133 F.3d 874 (Fed. Cir. 1998) . . . . . . . . . . . . . 4, 5, 17 Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Baldwin County Welcome Center v. Brown, 466 U.S. 147 (1984) . . . . . . . . . . . . . . . . . . . . . . . 9 Berry v. Pacific Sportfishing, Inc., 372 F.2d 213 (9th Cir. 1967) . . . . . . . . . . . . . . . . . . . . . . 10 Boling v. United States, 220 F.3d 1365 (Fed. Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Borough of Alpine v. United States, 923 F.2d 170 (Fed. Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . 5 Bray v. United States, 785 F.2d 989 (Fed. Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 -6 Brown Park Estates-Fairfield Dev. Co. v. United States, 127 F.3d 1449 (Fed. Cir. 1997) . . . . . 17 Burnett v. New York Central R. Co., 380 U.S. 424 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . 10-12 ... Caguas Cent. Fed. Sav. Bank v. United States, 215 F.3d 1304 (Fed. Cir. 2000) . . . . . . . . . . . . 5 Catellus Dev. Corp. v. United States, 31 Fed. Cl. 399 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6 Central Pines Land Co. v. United States, 61 Fed. Cl. 527 (2004) . . . . . . . . . . . . . . . . . . . . . . . 16 Chaney v. United States, 75 Fed. Cl. 206 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4 Forsgren v. United States, 64 Fed. Cl. 456 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 17 Forsgren v. United States, 73 Fed. Cl. 135 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13, 14 Frazer v. United States, 288 F.3d 1347 (Fed. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Goodrich v. United States, 63 Fed. Cl. 477 (2005), aff'd 434 F.3d 1329 (Fed. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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Grass Valley Terrace v. United States, 69 Fed. Cl. 341 (2005) . . . . . . . . . . . . . . . . . . . . . . . . 3, 4 Hilton v. Duke Power Co., 254 F.2d 118 (4th Cir. 1958) . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 Hopland Band of Pomo Indians v. United States, 855 F.2d 1573 (Fed. Cir. 1988) . . . . . . . . . . 11 Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990) . . . . . . . . . . . . . . . . . . . . . . . 9, 10 Japanese War Notes Claimants Ass'n v. United States, 337 F.2d 356 (Ct. Cl. 1966) . . . . . . . . . . 7 John R. Sand & Gravel Co. v. United States, 457 F.3d 1345 (Fed. Cir. 2006) . . . . . . . . . . . . 3, 4 LaMear v. United States, 9 Cl. Ct. 562, aff'd 809 F.2d 789 (Fed. Cir. 1986) . . . . . . . . . . . . . . . . 6 Leonard v. Gober, 223 F.3d 1374 (Fed. Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 MacLean v. United States, 454 F.3d 1334 (Fed. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Martinez v. Orr, 738 F.2d 1107 (10th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 13, 15 Martinez v. United States, 333 F.3d 1295 (Fed. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 7 McNutt v. General Motors Acceptance Corp., 56 S.Ct. 780, 785 (1936) . . . . . . . . . . . . . . . . . . . 4 Paulk v. Dept. of the Air Force, 830 F.2d 79 (7th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Reynolds v. Army & Air Force Exchange Serv., 846 F.2d 746 (Fed. Cir. 1988) . . . . . . . . . . . . 6 Spruill v. Merit Systems Protection Board, 978 F.2d 679 (Fed. Cir. 1992) ................5

Venture Coal Sales Co. v. United States, 370 F.3d 1102 (Fed. Cir. 2004) . . . . . . . . . . . . . . . . . 5 Warren v. Dept. of the Army, 867 F.2d 1156 (8th Cir. 1989) . . . . . . . . . . . . . . . . . . . . 10, 12, 13 Wells v. United States, 420 F.3d 1343 (Fed. Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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STATUTES 28 U.S.C. § 1491(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 28 U.S.C. § 1491(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9 28 U.S.C. § 1500 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12, 14, 15 28 U.S.C. § 2501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 38 U.S.C. § 5110(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 38 U.S.C. § 7266(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 38 U.S.C. § 7292 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 41 U.S.C. § 609(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 42 U.S.C. § 2000e-5(f)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 42 U.S.C. § 2000e-16(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12 45 U.S.C. § 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 45 U.S.C. § 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 46 U.S.C. § 763 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 RULES RCFC 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 6 RCFC 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6 RCFC 83.2(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 MISCELLANEOUS ABA Model Rules of Professional Conduct, Rule 1.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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I.

INTRODUCTION As Defendant explained in its opening brief, Plaintiff's claims accrued more than six

years prior to suit and, therefore, are time-barred under 28 U.S.C. § 2501. See Defendant's Motion to Dismiss for Lack of Jurisdiction and Memorandum in Support Thereof (hereinafter, "Def.'s Opening Br.") at 10-16, 18-19. In the prior Forsgren action in the Court of Federal Claims (No. 04-1223L), this Court "dismissed plaintiffs' claims with prejudice because it was apparent that the Tucker Act's six-year limitations period would have prevented plaintiffs from refiling their complaint in the Court of Federal Claims." See Forsgren, Order at 4 (Nov. 15, 2006) (Dkt. No. 46). When amending its dismissal, the Court apparently envisioned that Plaintiff could save its takings claim only by reviving its district court action, and then have that action transferred to the Court of Federal Claims. Id. at 4-5. Plaintiff, however, did not do that. Now, Plaintiff wants this Court to ignore the Court of Federal Claim's jurisdictional requirements and allow its takings action to proceed. Plaintiff does not dispute that its takings claim in Claim One is the same takings claim it asserted in the prior action which the Court dismissed on September 27, 2006. See Plaintiffs' Response in Opposition to Defendant's Motion to Dismiss for Lack of Jurisdiction (hereinafter, "Pltf.'s Br.") at 9 n.1.1/ Nor does Plaintiff dispute that Claim One accrued in 1999 and expired no later than December 31, 2005. Id. Rather, Plaintiff asks the Court to equitably toll the statute of limitations, arguing that it "acted with utmost diligence," and that the United States lulled Plaintiff into inaction by continuing to take discovery after informing Plaintiff of its potential jurisdictional problem arising under 28 U.S.C. § 1500. Id. at 8-13 & n.2, 14. In other words,

1/

There is but one Plaintiff in this action, the Forsgren Family Trust ("Forsgren") (see Compl. ¶ 10), however, Plaintiff at time refers to "Plaintiffs" in its papers, presumably referring to the trustees, all of whom are identified in the case caption.

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Plaintiff admits that it learned of its § 1500 jurisdictional problem while it still had time to correct it but, nonetheless, Plaintiff now argues that the Court should excuse its error in judgment based on Defendant's diligence in completing discovery. Simply put, Plaintiff's argument is frivolous. Defendant has shown that Claim Two is the same takings claim asserted in Claim One ­ both claims arise from the same alleged causative agent, namely flooding attributed to the CCC Ponds. See Def.'s Opening Br. at 18-19. But, in an obvious attempt to circumvent the statute of limitations, Plaintiff argues that its second takings claim arises not from flooding allegedly due to the CCC Ponds, but from the failure of the underground drain ­ a mitigation measure ­ to intercept water originating from the CCC Ponds. See Pltf.'s Br. at 15-19. But, as discussed below, this argument is inconsistent with Judge Damich's prior decision that Plaintiff's takings claim accrued in 1999. See Forsgren v. United States, 64 Fed. Cl. 456, 459-60 (2005). Consequently, Claim Two alleges the same cause of action as Claim One, and also is timebarred.

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II.

ARGUMENT A. Plaintiff Bears the Burden of Persuasion on Jurisdiction Because a Motion to Dismiss Grounded on the Statute of Limitations Is Jurisdictional and Implicates RCFC 12(b)(1), Not 12(b)(6)

Plaintiff attempts to side-step its burden of proof under RCFC 12(b)(1) by arguing that the government's motion to dismiss on statute of limitations grounds is governed by RCFC 12(b)(6). See Pltf.'s Br. at 2-6 (placing great weight on Chief Judge Damich's decision in Grass Valley Terrace v. United States, 69 Fed. Cl. 341, 346 (2005)). When Chief Judge Damich decided Grass Valley Terrace v. United States, however, he did not have the benefit of the Federal Circuit's decision in John R. Sand & Gravel Co., which makes clear that the six-year statute of limitations is a jurisdictional requirement for actions brought in the Court of Federal Claims. John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1354 (Fed. Cir. 2006); see also Martinez v. United States, 333 F.3d 1295, 1316 (Fed. Cir. 2003) (en banc) ("It is well established that statutes of limitations for causes of action against the United States, being conditions on the waiver of sovereign immunity, are jurisdictional in nature."); Chaney v. United States, 75 Fed. Cl. 206, 210-12 (2007) (declining to follow Chief Judge Damich's reasoning in Grass Valley Terrace and concluding that a motion to dismiss on statute of limitations grounds should be addressed under RCFC 12(b)(1)). When confronted with this very same issue in Chaney, Judge George W. Miller viewed John R. Sand & Gravel as a reaffirmation by the Federal Circuit that the statute of limitations in § 2501 is jurisdictional. Chaney, 75 Fed. Cl. at 211. Significantly, in John R. Sand & Gravel, because the statute of limitations is jurisdictional, the Federal Circuit performed an independent examination as to whether the statute of limitations barred plaintiff's claims, even though neither

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party raised the issue. See John R. Sand & Gravel, 457 F.3d at 1353-54; see also Chaney, 75 Fed. Cl. at 211. In her dissent, Judge Newman argued that the Federal Circuit should not have addressed the statute of limitations issue sua sponte because "the limitations period is not itself a matter of jurisdiction." John R. Sand & Gravel, 457 F.3d at 1362 (Newman, J., dissenting) (citing Ariadne Fin. Services Pty. Ltd. v. United States, 133 F.3d 874, 878 (Fed. Cir. 1998); Grass Valley Terrace, 69 Fed. Cl. at 347). The majority considered and rejected Judge Newman's argument, concluding that "the six-year statue of limitations of section 2501 enjoys a longstanding pedigree as a jurisdictional requirement." John R. Sand & Gravel, 457 F.3d at 1355. The majority was "unwilling to disturb the well-settled law that section 2501 creates a jurisdictional condition precedent for suit in the Court of Federal Claims, which may not be waived by the parties." Id.; see also Martinez, 333 F.3d at 1316. In light of John R. Sand & Gravel and the Federal Circuit's en banc decision in Martinez, Judge Miller concluded in Chaney that "a motion to dismiss a complaint as time-barred by the statute of limitations is properly treated as a motion to dismiss for lack of subject matter jurisdiction under RCFC 12(b)(1)." Chaney, 75 Fed. Cl. at 212; see also Catellus Dev. Corp. v. United States, 31 Fed. Cl. 399, 404-05 (1994) (when evaluating the statute of limitations defense, which is jurisdictional, plaintiff bears the burden of showing that the court has jurisdiction) (citing McNutt v. General Motors Acceptance Corp., 56 S.Ct. 780, 785 (1936)); Goodrich v. United States, 63 Fed. Cl. 477, 479-80 (2005) (addressing a motion to dismiss on statute of limitations grounds under RCFC 12(b)(1) because the statute of limitations is jurisdictional in the Court of Federal Claims), aff'd 434 F.3d 1329 (Fed. Cir. 2006). Moreover, Plaintiff is focusing on dicta in Bray v. United States, 785 F.2d 989, 992 (Fed.

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Cir. 1986), Ariadne Fin. Servs. Pty. v. United States, 133 F.3d 874, 878 (Fed. Cir. 1998), and Venture Coal Sales Co. v. United States, 370 F.3d 1102, 1105 n.2 (Fed. Cir. 2004), which state that the Court of Federal Claims has been granted the power and authority to adjudicate claims brought under the Tucker Act, 28 U.S.C. § 1491(a), and thus has "subject matter jurisdiction" over those cases.2/ Plaintiff ignores, however, that those decisions also make clear that § 2501 prohibits the Court of Federal Claims from exercising that subject matter jurisdiction over any claim filed more than six-years after the claim first accrues. See Bray, 785 F.2d at 992 ("[T]he Court of Claims has correctly noted that consent is in that sense `jurisdictional' and, when a complainant sued at a point beyond the six years period during which the United States had consented to be sued, the Court of Claims dismissed for lack of jurisdiction."); Venture Coal, 370 F.3d at 1106 (noting that "Venture Coal's suit . . . is based on jurisdiction under the Tucker Act, which our precedent clearly states is subject to its statute of limitations"); Ariadne, 133 F.3d at 878 (Fed. Cir. 1998) ("Ariadne's untimeliness can . . . bar its eligibility to invoke that jurisdiction."). By circumscribing the Court of Federal Claims's exercise of subject matter jurisdiction, § 2501 is properly referred to as "jurisdictional." That is particularly true given that § 2501 is a condition of the waiver of sovereign immunity and a suit against the United States cannot lie in the absence of an applicable waiver. See 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

Plaintiff's reliance upon Borough of Alpine v. United States, 923 F.2d 170 (Fed. Cir. 1991) and Spruill v. Merit Systems Protection Board, 978 F.2d 679 (Fed. Cir. 1992) is wholly misplaced as neither action involves 28 U.S.C. § 2501. Borough of Alpine involves the timeliness of an action under the Contract Disputes Act of 1978, § 10(a)(3), 41 U.S.C. § 609(a)(3), and Spruill is concerned with the jurisdiction of the Merit System Protection Board over certain claims purportedly arising under the Civil Service Reform Act and the Whistleblower Protection Act. Borough of Alpine, 923 F.2d at 171; Spruill, 978 F.2d at 680-81, 681 n.1. -5-

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limitations is jurisdictional, because filing within the six-year period was a condition of the waiver of sovereign immunity in the Tucker Act, 28 U.S.C. § 1491(a)(1)."); see also Bray, 785 F.2d at 992 (money claims against the federal government under the Tucker Act implicate the doctrine of sovereign immunity "and suit will not lie except where the United States has consented to be sued"). Accordingly, Plaintiff bears the burden of showing that this Court has jurisdiction, as Plaintiff itself acknowledges. See Pltf.'s Br. at 5-6 (citing Reynolds v. Army & Air Force Exchange Serv., 846 F.2d 746, 747-48 (Fed. Cir. 1988). Furthermore, under Rule 12(b)(1), Plaintiff does not enjoy the benefit of a presumption that all factual allegations in the complaint are true, and all reasonable inferences are not to be drawn in its favor, contrary to Plaintiff's assertion in its papers. See Catellus Dev. Corp., 31 Fed. Cl. at 405 n.6 ("When facts are analyzed in the context of a jurisdictional challenge, plaintiff is not entitled to have every inference drawn in its favor.") (citing LaMear v. United States, 9 Cl.Ct. 562, 568 n.6, aff'd, 809 F.2d 789 (Fed. Cir. 1986)); see also Pltf.'s Br. at 6.3/

Plaintiff argues that Defendant's motion should be analyzed as one for summary judgment under RCFC 56, but it confounds RCFC 12(b)(6) with RCFC 56 by arguing, "Plaintiffs have stated a claim upon which relief can be granted, and therefore, the Defendant is not entitled to summary judgment as a matter of law." See Pltf.'s Br. at 8. While the United States believes that its motion should be addressed under RCFC 12(b)(1), as Plaintiff acknowledges, there is no genuine dispute as to any material fact (Pltf.'s Br. at 1), warranting dismissal as a matter of law pursuant to RCFC 56. -6-

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B.

Plaintiff Has Not Met Its Burden of Proof to Show that the Statute of Limitations Should Be Equitably Tolled

Plaintiff does not dispute that its takings claim asserted in Claim One accrued in 1999 and expired by December 31, 2005. See Pltf.'s Br. at 9 n.1. Because this action was filed on January 10, 2007, more than six years after Plaintiff's takings claim accrued, Plaintiff's takings claim would be time-barred by the six-year statute of limitations under 28 U.S.C. § 2501, unless the statute of limitations were equitably tolled. However, the U.S. Court of Appeals for the Federal Circuit has never held that equitable tolling applies with respect to the general statute of limitations for Tucker Act claims, 28 U.S.C. § 2501. See Frazer v. United States, 288 F.3d 1347, 1352 (Fed. Cir. 2002); see also Martinez v. United States, 333 F.3d 1295, 1318 (Fed. Cir. 2003). Assuming that the statute of limitations may be tolled, the case law suggests only two circumstances when it may be appropriate: (1) when the United States has prejudicially concealed facts; or (2) when plaintiff's claims were inherently unknowable at the accrual date. See Alliance of Descendants of Tex. Land Grants v. United States, 37 F.3d 1478, 1482 (Fed. Cir. 1994) (citing Japanese War Notes Claimants Ass'n v. United States, 337 F.2d 356, 359 (Ct. Cl. 1966)). Here, Plaintiff does not argue that its claims were inherently unknowable, nor does it argue that the United States concealed facts but, rather, Plaintiff argues two novel bases for tolling the statute of limitations. According to Plaintiff, the statute of limitations should be tolled because: (1) it allegedly diligently pursued its takings action but was thwarted from pursuing the merits of its case by a procedural error (see Pltf.'s Br. at 8-14); and (2) the United States allegedly lulled Plaintiff into inaction by conducting discovery prior to filing a motion to dismiss on jurisdictional grounds on April 28, 2006 (see Pltf.'s Br. at 13 n.2). Plaintiff's first argument is not supported by the case law it relies upon, and lacks merit. Plaintiff's second argument is -7-

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frivolous, but requires a response nonetheless because Plaintiff filed voluminous exhibits in support of it. Additionally, Plaintiff argues that its second takings claim falls within the continuing claims doctrine, giving rise to a new cause of action that did not accrue until 2005. See Pltf.'s Br. at 15-19. According to Plaintiff, its claims "can be broken down into a series of independent and distinct wrongs or events," namely, the "reconstruction of the ponds," and "the construction of the subsurface drain." Id. at 17. As discussed further, below, Plaintiff Claim Two merely reasserts the same cause of action as asserted in Claim One and, therefore, also is time-barred. Because Plaintiff fails to meet its burden of proof to show that this Court has jurisdiction, the Complaint should be dismissed.

1.

Plaintiff's Novel Tolling Argument Is Not Supported by the Law or the Facts and Should Be Rejected

Plaintiff attempts to save its takings claims by arguing for a third, novel, ground to toll the statute of limitations in a takings action. Specifically, Plaintiff argues that the statute of limitations should be equitably tolled because it diligently pursued its takings action. Pltf.'s Br. at 8-14. As noted above, however, there are only two circumstances when tolling the statute of limitations in a takings action may be appropriate: (1) when the United States has prejudicially concealed facts; or (2) when plaintiff's claims were inherently unknowable at the accrual date. See Alliance of Descendants, 37 F.3d at 1482. Plaintiff's argument for a third ground for tolling the statute of limitations does not withstand scrutiny.

Plaintiff first argues for a rebuttable presumption that the statute of limitations may be

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equitably tolled, however, it mistakenly broadens the Supreme Court's holding regarding the presumption of tolling announced in Irwin v. Department of Veterans Affairs, 498 U.S. 89, 9596 (1990). Irwin involved an action against the government arising under Title VII of the Civil Rights Act of 1964. Id. at 91. The Supreme Court previously had held that "the statutory time limits applicable to lawsuits against private employers under Title VII are subject to equitable tolling." Id. at 95. The question before the Supreme Court in Irwin, therefore, was whether that same statute of limitations also may be tolled in a Title VII action against the government, and the Court held that it may. Id. at 95-96. But takings actions brought under the Tucker Act only may be asserted against the government, and not against private defendants.4/ Consequently, there is no "equitable tolling applicable to suits against private defendants" in the takings context that may be extended to suits against the United States. See id. Thus there is no presumption of equitable tolling in takings cases, and Plaintiff bears the burden of showing that the statute of limitations under 28 U.S.C. § 2501, is subject to equitably tolling and that it applies in this instance ­ a burden that it fails to meet. None of the cases that Plaintiff relies upon in support of its tolling arguments involve the statute of limitations under 28 U.S.C. § 2501 and, therefore, they are distinguishable on that basis alone.5/ The United States has shown in its opening brief that Irwin, supra, does not

4/

The Tucker Act, 28 U.S.C. § 1491(a)(1), states: "The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution. . . ."

5/

See Irwin, 498 U.S. at 91 (refusing to toll the 30-day statute of limitations under 42 U.S.C. § 2000e-16(c), of the Civil Rights Act); Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 (1984) (refusing to toll the 90-day statute of limitations under 42 U.S.C. § 2000e-5(f)(1), of the Civil Rights Act); Burnett v. New York Central R. Co., 380 U.S. 424, 426 (1965) (addressing the three year statute of limitations under 45 U.S.C. § 56, of the Federal Employer's Liability -9-

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support Plaintiff's tolling argument. See Def.'s Opening Br. at 13-16. Plaintiff's reliance on Andrews, supra, also is misplaced as that case concerns the date of accrual of veterans' benefits rather than the tolling of a statute of limitations. See n.5, supra. Moreover, as discussed below, Plaintiff erroneously relies upon Burnett and Warren in support of its argument that the statute of limitations should be tolled where the plaintiff acted diligently, but filed a defective pleading during the statutory period. See Pltf.'s Br. at 10-12; see also note 5, supra. In Burnett, the plaintiff filed a timely action under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. ("FELA"), in the Common Pleas Court of Hamilton County, Ohio. Burnett, 380 U.S. at 424. The Ohio court had jurisdiction but the action was dismissed because venue was improper. Id. at 425. Eight days later, but after the three year statute of limitations had expired, plaintiff filed the same action in the U.S. District Court for the Southern District of Ohio. Id. Apparently, the state court action was dismissed because it could not be transferred under Ohio law, and the defendant would not waive its objection to venue. Id. at 425, 429. The Supreme Court held that "when a plaintiff begins a timely FELA action in a state court of

Act); Andrews v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003) (does not involve a statute of limitations but, rather, the time when veterans' benefits begin to accrue under 38 U.S.C. § 5110(b)(1)); Leonard v. Gober, 223 F.3d 1374, 1375-76 (Fed. Cir. 2000) (finding no jurisdiction under 38 U.S.C. § 7292, to consider tolling arguments where plaintiff filed notice of appeal one day late); Bailey v. West, 160 F.3d 1360, 1362-63 (Fed. Cir. 1998) (addressing whether the 120day time limit for requesting review of a decision of the Board of Veterans' Appeals under 38 U.S.C. § 7266(a), is subject to equitable tolling); Warren v. Dept. of the Army, 867 F.2d 1156, 1157 (8th Cir. 1989) (addressing whether the 30-day statute of limitations under 42 U.S.C. § 2000e-16(c), of the Civil Rights Act, may be tolled); Paulk v. Dept. of the Air Force, 830 F.2d 79, 81-83 (7th Cir. 1987) (applying relation back rule under Fed. R. Civ. P. 15(c)); Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984) (concluding that the 30-day statute of limitations under 42 U.S.C. § 2000e-16(c), of the Civil Rights Act, is non-jurisdictional and may be tolled); Berry v. Pacific Sportfishing, Inc., 372 F.2d 213, 214 (9th Cir. 1967) (addressing 2-year statute of limitations under 46 U.S.C. § 763, of the Death on the High Seas Act). - 10 -

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competent jurisdiction, service of process is made upon the opposing party, and the state court action is later dismissed because of improper venue, the FELA limitation is tolled during pendency of the state action." Id. at 428. Critical to the Supreme Court's holding in Burnett were prior decisions finding that the statute of limitations under FELA "is not totally inflexible, but, under appropriate circumstances, it may be extended beyond three years." Id. at 427. The Supreme Court also found it persuasive that state and federal statutes permit transferring an action brought in an improper venue, and many states have savings statutes that permit refiling an action within a specified period of time after dismissal for improper venue. Id. at 429-30. Moreover, the plaintiff in Burnett "did not sleep on his rights, but brought an action within the statutory period in the state court of competent jurisdiction." Id. at 429. These factors do not exist here. First, unlike the situation in Burnett, the Court of Federal Claims never had jurisdiction over Plaintiff's takings claim when first filed in 2004, because the same claim was pending in the United States District Court for the District of Wyoming. See Forsgren v. United States, 73 Fed. Cl. 135, 139-43 (2006). Additionally, Burnett did not involve a statute of limitations in an action against the United States, where the statute of limitations "is a jurisdictional requirement attached by Congress as a condition of the government's waiver of sovereign immunity and, as such, must be strictly construed." MacLean v. United States, 454 F.3d 1334, 1336 (Fed. Cir. 2006) (quoting Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1576-77 (Fed. Cir.1988)) (internal quotation marks omitted).

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Moreover, and perhaps most importantly, unlike the plaintiff in Burnett, the Plaintiff here did not act diligently to preserve its takings claim. After learning of the jurisdictional problem in its prior action under 28 U.S.C. § 1500 (see Def.'s Opening Br. at 15-16 & Ex. A), Plaintiff did not diligently (nor prudently) dismiss and re-file its takings action before the statute of limitations expired. Instead, Plaintiff chose to gamble that 28 U.S.C. § 1500 did not apply. Burnett, therefore, provides no support for Plaintiff's equitable tolling argument. In Warren, the plaintiff, acting pro se, timely delivered to the clerk of the district court his complaint in a Title VII action, but identified the wrong defendant ­ he erroneously named the Department of the Army as the defendant, rather than the Secretary of the Army as required by 42 U.S.C. § 2000e-16(c). Warren, 867 F.2d at 1157-60. The next day, Warren also filed applications for appointment of counsel and to proceed in forma pauperis. Id. at 1157-58. After the thirty-day limitations period expired, the magistrate denied Warren's applications but allowed Warren to formally file his complaint, which was served on the Department of the Army more than 30 days beyond the running of the limitations period. Id. at 1158. The Department of the Army moved to dismiss on the ground that Warren identified the wrong defendant and, because the Secretary was not timely served, any amendment to correct the error could not relate back to the initial filing date under Fed. R. Civ. P. 15(c). Id. The district court agreed with the government and dismissed the complaint, but the Eighth Circuit reversed. Id. at 1158-1161. Significantly, the Eighth Circuit first concluded that the 30-day limitations period under Title VII is not jurisdictional and, therefore, is subject to equitable tolling in an action against the government. Id. at 1159. Turning to the merits of Warren's tolling argument, the Eighth Circuit found ambiguous the EEOC's instructions in the right-to-sue letter regarding who must be the

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named defendant. Id. at 1160. Consequently, the Eighth Circuit decided that Warren, who "is wholly unfamiliar with the law," could not be faulted with misinterpreting the EEOC's letter. Id. When Warren timely submitted his complaint to the clerk, he thus "was led by the EEOC into believing that he had done everything required of him," justifying tolling the limitations period. Id. at 1160. The delay incurred while the district court reviewed his applications for appointment of counsel and to proceed in forma pauperis provided additional grounds to toll the limitations period. Id. "Warren acted with the `utmost diligence,' only to find himself caught in an arcane procedural snare," the Eighth Circuit observed. Id. at 1160 (citing Martinez, 738 F.2d at 1112). Accordingly, in light of "[s]uch unusual circumstances," the Warren court held that equitable tolling applied and Warren's complaint would be deemed to have been timely filed and served. Id. at 1160-61. An amended complaint naming the correct defendant, therefore, would relate back to the initial filing date under Fed. R. Civ. P. 15(c). Id. at 1161-62. Here, none of the factors supporting tolling that the court identified in Warren exist. Unlike the statute at issue in Warren, 28 U.S.C. § 2501 is jurisdictional. See Section II.A., supra. Importantly, Plaintiff always has been represented by counsel, since filing its district court action in 2003 to the present. See Forsgren, 73 Fed. Cl. at 137. Accordingly, unlike Warren who appeared pro se, Forsgren can be faulted for misinterpreting the law. And, as discussed above, Plaintiff did not act with the "utmost diligence" to preserve its claims. Equitable tolling is not warranted in this case.

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2.

Plaintiff's Attempt to Shift Blame to the United States for Its Failure to Timely Correct Its § 1500 Problem Is Frivolous at Best

Plaintiff also argues that it was lulled into inaction, because the United States allegedly belatedly pursued dismissal under § 1500. See Pltf.'s Br. at 12-13. But Plaintiff ignores that the parties expressly agreed to the deadlines for filing dispositive motions, including Defendant's motion to dismiss on § 1500 grounds, in their March 10, 2006 Joint Motion to Modify Schedule.6/ See Pltf.s' Br., Ex. 5. Plaintiff did not object then to the timing of Defendant's § 1500 motion, and it should not be heard to complain now.7/ Moreover, Plaintiff argues that Defendant also lulled it into inaction by continuing to vigorously pursue discovery after informing Plaintiff of its potential jurisdictional problem under 28 U.S.C. § 1500. See Pltf.'s Br. at 13 n.2. But Plaintiff is overlooking RCFC 83.2(c), Standards for Professional Conduct, which adopts by reference the "American Bar Association ["ABA"] Model Rules of Professional Conduct." Among the ABA's Model Rules is Rule 1.3, Diligence, which specifies that a "lawyer shall act with reasonable diligence and promptness in representing a client."8/ Accordingly, defense counsel were required to diligently represent the United States by pursuing discovery, or risk violating RCFC 83.2(c) by doing nothing on the

6/

Additionally, the United States took discovery in Forsgren, No. 04-1223L, in compliance with the Court's scheduling order of August 29, 2005, as modified upon joint motions by the Court's orders of January 13, 2006 and March 16, 2006. Moreover, based upon the discovery taken, the United States was able to file one dispositive motion addressing issues arising under both 28 U.S.C. § 1500 and § 2501. See Forsgren, 73 Fed. Cl. at 136, 143-44. Also, Plaintiff's argument that it was lulled into inaction because it believed that Defendant was no longer pursuing a second motion to dismiss on jurisdictional grounds (see Pltf.'s Br. at 13 n.2), fails to recognize that the court may sua sponte dismiss for lack of jurisdiction pursuant to RCFC 12(h)(3).
8/ 7/

Available at http://www.abanet.org/cpr/mrpc/rule_1_3.html, last accessed on May 5, 2007. - 14 -

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chance of prevailing on a motion to dismiss on jurisdictional grounds. Tellingly, Plaintiff does not deny that Defendant's counsel brought to its attention Plaintiff's jurisdictional problem arising under 28 U.S.C. § 1500, while it still had time to act within the limitations period. That it failed to do so, cannot be attributed to any actions of the United States. Martinez v. Orr does not support Plaintiff's argument. In Martinez, the pro se plaintiff received a right-to-sue letter from the EEOC, advising him of his right to file an action in a federal district court "within thirty (30) days of the date of receipt of this decision," but also informing him that he could request that the EEOC "reopen and reconsider" its decision. Martinez, 738 F.2d at 1111. Martinez did not file suit within the 30-day period, but promptly requested reconsideration of the EEOC's decision, which subsequently was denied approximately nine months later. Id. Martinez then retained counsel and filed suit within thirty days of the EEOC's decision to deny his request for reconsideration, but months after the limitations had run. Id. "Martinez simply misinterpreted the notice he received from the EEOC. . . . reasonably elect[ing] to defer litigation until the EEOC had had an opportunity to reconsider its decision." Id. at 1112. The Tenth Circuit, therefore, concluded that "Martinez was in fact misled and lulled into inaction by the EEOC," warranting equitable tolling of the statute of limitations. Id. While Martinez "acted with the utmost diligence" (Martinez, 738 F.2d at 1112), Forsgren simply allowed the statute of limitations to expire, while on notice that it had a potential jurisdictional problem under 28 U.S.C. § 1500. Moreover, while Martinez reasonably misinterpreted the EEOC's right-to-sue letter, Plaintiff does not provide any explanation for its apparent misunderstanding of the law. Unlike Martinez, Plaintiff was represented by counsel

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and does not enjoy an excuse for misinterpreting the law. In sum, Plaintiff's argument that it was lulled into inaction by Defendant's diligent discovery runs counter to the Rules of Professional Conduct, and is not supported by the law Plaintiff cites nor the facts. Plaintiff utterly fails to meet its burden of showing that the statute of limitations should be equitably tolled. 3. Claim Two also Is Time-Barred Because It Asserts the Same Cause of Action as Asserted in Claim One

As the United States explained in it opening brief, both Claim One and Claim Two arise from the 1995 alterations of the CCC Ponds, constituting the same cause of action. See Def.'s Opening Br. at 18-19. Claim Two is nothing more than an attorney's creative recycling of the same cause of action asserted in Claim One in an attempt to avoid the statute of limitations.9/ Plaintiff cites only Hilton v. Duke Power Co., 254 F.2d 118 (4th Cir. 1958) in support of its argument that the construction of the subsurface drain could give rise to a second taking, but that case is distinguishable on its facts. In Hilton, the plaintiff's predecessor in title, his father, was compensated for a flowage easement in 1917 prior to the construction of a dam on the Wateree River in 1919, which was to be built to a height of 212 feet above sea level. Id. at 120, 123. Six years after it was constructed, in 1925, the dam was raised to a height of 218 feet above sea level. Id. The court concluded that as long as the dam remained at 212 feet as initially contemplated, the easement right acquired by the power company included damage to the tract at issue. Id. at 123. "But when the dam was raised in 1925, resultant additional injury [to the

9/

Plaintiff's incorporation by reference into Claim Two its allegations and claims with respect to the CCC Ponds asserted in Claim One, further supports the government's contention that Claim Two is but a reassertion of Claim One. See Compl. ¶ 98. - 16 -

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plaintiff's property] was not covered by the earlier award [of compensation]" for a flowage easement, and constituted a new taking of property under South Carolina law. Id. at 121, 123. In Hilton, however, by raising the dam, the power company effectively created a new impoundment at 218 feet above sea level. Id. at 123. In contrast, here, Plaintiff identifies no subsequent alterations to the ponds since 1995 that could give rise to a new cause of action. Moreover, Plaintiff's argument that the subsurface drain could give rise to a new cause of action is contrary to Judge Damich's decision in Plaintiff's prior takings action. See Forsgren, 64 Fed. Cl. at 457-60. Significantly, Judge Damich did not find that a new cause of action accrued after each mitigation measure failed. See Forsgren, 64 Fed. Cl. at 460 (noting that the government "tried persistently to mitigate the flooding"). To the contrary, Judge Damich held that Plaintiff's takings claim accrued in 1999, when the majority of Plaintiffs' damages ­ the same damages now alleged in claims One and Two ­ were reasonably foreseeable. Id. at 459; cf. Compl. ¶¶ 51, 62, 96, 104 with Forsgren, No. 04-1223L, Compl. ¶¶ 54, 86. Finally, Plaintiff itself agrees that "a claim based upon a single distinct event, which may have continued ill effects later on, is not a continuing claim." See Pltf.'s Br. at 17.10/ As the

10/

Citing Brown Park Estates-Fairfield Dev. Co. v. United States, 127 F.3d 1449, 1456 (Fed. Cir. 1997) (refusing to apply the continuing claims doctrine where claims arose from discrete events that occurred more than six years prior to suit and, therefore, were barred by the statute of limitations, 28 U.S.C. § 2501); Ariadne Fin. Services Pty. Ltd. v. United States, 133 F.3d 874, 879 (Fed. Cir. 1998) (finding that the continuing claims doctrine does not postpone the accrual of plaintiff's claim where there was but "a single repudiation" of the contract by the government); Boling v. United States, 220 F.3d 1365, 1373-74 (Fed. Cir. 2000) (concluding that the continuing claims doctrine does not apply where "there is only a single governmental act that breaches a duty to the plaintiffs"); Wells v. United States, 420 F.3d 1343, 1345-46 (Fed. Cir. 2005) (applying the continuing claims doctrine where plaintiff alleged that the government deducted an excessive amount from his monthly Navy retirement pay, giving rise to a new claim each month). - 17 -

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United States has shown above and in its opening brief (see Def.'s Opening Br. at 18-19), Plaintiff's Claim Two asserts the same cause of action as in Claim One ­ and is not saved by the continuing claims doctrine. Like Claim One, Claim Two is time-barred and should be dismissed. III. CONCLUSION For the reasons set forth above, and in Defendant's opening brief, the Complaint should be dismissed for lack of jurisdiction pursuant to 28 U.S.C. § 2501. Respectfully submitted, MATTHEW J. McKEOWN Acting 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) 305-0267 OF COUNSEL: Steven M. Hoffman Attorney Office of the Solicitor Rocky Mountain Regional Office United States Dept. of Interior 755 Parfet Street, Room 151 Lakewood, CO 80215 (303) 231-5363 fax Diane M. Connolly Deputy Regional Attorney Office of the General Counsel United States Dept. of Agriculture Mountain Region P.O. Box 25005 Lakewood, CO 80225 (303) 275-5557 fax

Dated: May 14, 2007

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