603 F.3d 1273 (Fed. Cir. 2010), 2009-5048, Bright v. United States

Docket Nº:2009-5048.
Citation:603 F.3d 1273
Opinion Judge:SCHALL, Circuit Judge.
Party Name:Edward L. BRIGHT, II, Fred E. Evans, Nancy A. Evans, Earleen Fauvergue, Clarence Forkner, Randy W. Froebe, Debra J. Froebe, Geneva Grubbs, Norma Lou Hall, Homer E. Hamilton, Debbie M. Hamilton, Shirley Hendricks, David Houser, Gail Houser, Patrick J. O'Bryan, Trustee of the Patrick J. O'Bryan Revocable Living Trust Under Agreement Dated 9/7/2001, L
Attorney:Mark F. ( Thor ) Hearne, II, Lathrop & Gage LLP, of St. Louis, MO, argued for plaintiffs-appellants. With him on the brief were Lindsay S.C. Brinton and Meghan S. Largent. Kristine S. Tardiff, Attorney, Environment and Natural Resources Division, United States Department of Justice, of Concord, N...
Judge Panel:Before MICHEL, Chief Judge, RADER, and SCHALL, Circuit Judges.
Case Date:May 03, 2010
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1273

603 F.3d 1273 (Fed. Cir. 2010)

Edward L. BRIGHT, II, Fred E. Evans, Nancy A. Evans, Earleen Fauvergue, Clarence Forkner, Randy W. Froebe, Debra J. Froebe, Geneva Grubbs, Norma Lou Hall, Homer E. Hamilton, Debbie M. Hamilton, Shirley Hendricks, David Houser, Gail Houser, Patrick J. O'Bryan, Trustee of the Patrick J. O'Bryan Revocable Living Trust Under Agreement Dated 9/7/2001, Lester Roark, Donald Lee Roper, II, Ricky D. Russell, B. Lorene Soper, Brady J. Stuart, and Rose M. Stuart, for Themselves and as Representatives of a Class of Similarly Situated Persons, Plaintiffs-Appellants,

v.

UNITED STATES, Defendant-Appellee.

No. 2009-5048.

United States Court of Appeals, Federal Circuit.

May 3, 2010

Page 1274

Mark F. (" Thor" ) Hearne, II, Lathrop & Gage LLP, of St. Louis, MO, argued for plaintiffs-appellants. With him on the brief were Lindsay S.C. Brinton and Meghan S. Largent.

Kristine S. Tardiff, Attorney, Environment and Natural Resources Division, United States Department of Justice, of Concord, NH, argued for defendant-appellee. With her on the brief were John C. Cruden, Acting Assistant Attorney General; and Kathryn E. Kovacs, Attorney, of Washington, DC.

Nancie G. Marzulla, Marzulla Law, of Washington, DC, for amici curiae Klamath Irrigation District, et al. With her on the brief was Roger J. Marzulla.

Brent W. Baldwin, Baker Sterchi Cowden & Rice, LLC, of St. Louis, MO, for amici curiae Larry J. Rhutasel, et al. With him on the brief were Steven M. Wald and J. Robert Sears; and Thomas S. Stewart, of Kansas City, MO.

Helen K. Michael, Howrey LLP, of Washington, DC, for amicus curiae National Federation of Federal Employees. With her on the brief was John F. Stanton.

Before MICHEL, Chief Judge, RADER, and SCHALL, Circuit Judges.

SCHALL, Circuit Judge.

Plaintiffs-Appellants (" Appellants" ) are putative members of a class of landowners seeking compensation under the Fifth Amendment pursuant to the Tucker Act, 28 U.S.C. § 1491(a)(1). They seek compensation for the alleged taking of their respective property interests under the National Trail Systems Act, 16 U.S.C. §§ 1241-1251 (the " Trails Act" ). The United States Court of Federal Claims dismissed Appellants' second amended complaint as to all named plaintiffs other than Earleen Fauvergue, for lack of subject matter jurisdiction. Fauvergue v. United States, 86 Fed.Cl. 82 (2009), and erratum (changing " tenets" to " tenet" on page 16) (filed Mar. 18, 2009) (together, " Dismissal Order " ). The court did so on the ground that although Ms. Fauvergue filed a class action complaint and sought class certification prior to expiration of the six-year limitations period prescribed by 28 U.S.C. § 2501, none of the twenty other putative class members opted in to the suit as named party plaintiffs prior to expiration of the period.

For the reasons set forth below, we hold that when a class action complaint is filed in the Court of Federal Claims and class certification is sought prior to expiration of the section 2501 limitations period, the limitations period is tolled. The limitations period is tolled during the period the court allows potential class members to opt in to the class. We therefore reverse the judgment of the Court of Federal Claims dismissing Appellants' second amended complaint and remand the case to the court for proceedings on the merits of Appellants' taking claims.

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BACKGROUND

I.

Appellants' taking claims arose under the Trails Act. The Trails Act sets out a statutory scheme pursuant to which unused railroad lines can be converted into designated trails for recreational uses. See Preseault v. Interstate Commerce Comm'n, 494 U.S. 1, 5, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990) (stating that the purpose of the Trails Act is to preserve shrinking rail trackage by converting unused railroad rights-of-way into recreational trails). We explained the operation of the Trails Act in Caldwell v. United States, 391 F.3d 1226 (Fed.Cir.2004).

The Surface Transportation Board (" STB" ) is charged with regulating the construction, operation, and abandonment of most railroad lines in the United States. Id. at 1228. When a railroad seeks to abandon a railroad right of way within the jurisdiction of the STB, it must either (1) file a standard abandonment application or (2) seek an exemption from filing such an application. Id. If the STB approves a standard abandonment application or grants an exemption, and the railroad ceases operation over the line, the STB relinquishes jurisdiction over the abandoned railroad right of way and state law reversionary property interests, if any, take effect. Id. at 1228-29.

Through a process known as " railbanking," the Trails Act provides an alternative to abandoning a railroad right of way. Id. at 1229. The Trails Act allows a railroad to negotiate with a state, municipality, or private group (the " trail operator" ) to assume financial responsibility for operating the railroad right of way as a recreational trail. Id. If the railroad and the trail operator are willing to negotiate a trail use agreement, the STB stays the abandonment process and issues a notice allowing the railroad right-of-way to be " rail-banked." Id. The effect of this notice, if the railroad and prospective trail operator reach an agreement, is that the STB retains jurisdiction for possible future railroad use and the abandonment of the corridor is blocked, even though the conditions for abandonment are otherwise met. Id. Section 8(d) of the Trails Act states: " [S]uch interim use [for trails] shall not be treated, for purposes of any law or rule, as an abandonment of the use of such rights-of-way for railroad purposes." 16 U.S.C. § 1247(d). What this means is that the Trails Act prevents the operation of state laws that would otherwise come into effect upon abandonment, specifically, property laws that would " result in extinguishment of easements for railroad purposes and reversion of rights of way to abutting landowners." Rail Abandonments-Use of Rights-of-Way as Trails, Ex Parte No. 274 (Sub-No. 13), 2 I.C.C.2d 591, 1986 WL 68617 (1986). A Fifth Amendment Taking occurs if the original easement granted to the railroad under state property law is not broad enough to encompass a recreational trail. Caldwell, 391 F.3d at 1229.

The typical railbanking process begins when a railroad files with the STB an abandonment application or, as in this case, a request for an exemption. Id. at 1230. If a request for an exemption is filed and the request is approved, the STB publishes a Notice of Exemption in the Federal Register. Id. A potential trail operator then may file a railbanking petition pursuant to regulations promulgated by the STB. Id. If the petition meets regulatory criteria, and the railroad agrees to negotiate with the potential trail operator, the STB issues a Notice of Interim Trail Use or Abandonment (" NITU" ) to the railroad and to the potential trail operator for the portion of the right-of-way to be covered by the agreement. Id. , citing 49 C.F.R. §§ 1152.29(b)(2) and (d). The NITU allows the rail carrier to discontinue service and salvage track and other equipment

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without an abandonment taking place. Id. At the same time, the NITU extends indefinitely to permit interim trail use once an agreement is reached between the railroad and the trail operator. Id.

II.

The facts pertinent to this case are not in dispute. Appellants are landowners who allege that the conversion of a railroad line into a public hiking trail under the Trails Act resulted in a Fifth Amendment taking of their reversionary property interests. The railroad line at issue ran 28.25 miles between Columbus, in Cherokee County, Kansas, and Carthage, in Jasper County, Missouri. The line consisted of a 100-foot-plus wide strip of land that was originally secured by the Memphis Carthage & Northwestern Railroad Company (the " MCNRC" ) in 1876. The MCNRC retained the line until 1980, when it transferred it to the St. Louis and San Francisco Railroad Company. Eventually, following a series of mergers, in 1995 that company became the Burlington Northern and Santa Fe Railway Company (the " BNSF" ).

On May 23, 2002, The STB published a Notice of Exemption filed by the BNSF. In the Notice, the BNSF sought to abandon the Columbus-Carthage railroad line, based upon two years of nonuse. See The Burlington Northern and Santa Fe Railway Company-Abandonment Exemption-in Cherokee County, KS, and Jasper County, MO, 67 Fed.Reg. 36,298 (May 23, 2002). On June 21, 2002, the STB issued a NITU authorizing conversion of the Columbus-Carthage railroad line into a public-access recreational trail, pursuant to section 8 of the Trails Act. As explained above, the effect of the NITU was to stay railroad abandonment during the pendency of trail use. A further effect of the NITU was to accrue an action for compensation by any affected landowners based on a Fifth Amendment taking. See, e.g., Barclay v. United States, 443 F.3d 1368, 1373 (Fed.Cir.2006) (" a Trails Act taking begins and a takings claim accrues, if at all, on issuance of the NITU." ). Thus, the NITU publication date is the date on which the six-year limitations period of 28 U.S.C. § 2501 begins to run for a taking claim under the Trails Act. Caldwell, 391 F.3d at 1235. Under section 2501, " [e]very claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues." Therefore, as of June 21, 2002, June 21, 2008 was the last day on which any affected landowner could file a Fifth Amendment taking claim in the Court of Federal Claims based on the rail-to-trail conversion in this...

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