Abernethy v. United States
| Decision Date | 10 December 2012 |
| Docket Number | No. 07-651L,07-651L |
| Parties | THOMAS F. ABERNETHY, JR. et al., Plaintiffs, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
RCFC 12(b)(1) motion to dismiss for lack of
subject-matter jurisdiction; statute of
limitations, 28 U.S.C. § 2501; class action
tolling under Bright v. United States; RCFC
56 motion for summary judgment; laches;
defense prejudice.
Martin E. Wolf, Quinn, Gordon & Wolf, Chtd., Towson, Maryland, for plaintiffs. Kieron F. Quinn, Richard S. Gordon, Katherine B. Bornstein, Quinn, Gordon & Wolf, Chtd., all of Towson, Maryland, Kristen D. Hofheimer, Charles R. Hofheimer, Hofheimer/Ferrebee, P.C., all of Virginia Beach, Virginia, Thomas Shuttleworth, Stephen C. Swain, and Charles Lustig, Shuttleworth, Ruloff, Swain, Haddad & Morecock, P.C., all of Virginia Beach, Virginia, of counsel.
Joshua A. Doan, Environment & Natural Resources Division, Department of Justice, with whom was Ignacia S. Moreno, Assistant Attorney General, all of Washington, D.C., for defendant. Robert J. Smith, Navy Litigation Office, Washington, D.C., of counsel.
Before the Court is Defendant's Motion to Dismiss or, Alternatively, for Summary Judgment ("Mot. to Dismiss"). The government argues that the statute of limitations should not have been tolled for plaintiffs, putative members of a class whose certification was denied when the limitations period had more than two years remaining; or, in the alternative, that laches would preclude plaintiffs' claims. For the reasons that follow, the government's motion is DENIED.
The facts underlying the substantive allegations in this case are fairly straightforward. In the mid-1990s, the Department of Defense Base Closure and Realignment Commission decided to close a naval air station in Florida. Compl. for Inverse Condemnation ("Compl.") ¶ 12. Nine fleets of F/A-18 C/D fighter planes (approximately 156 aircraft) were relocated to Naval Air Station (NAS) Oceana in Virginia Beach, Virginia, starting in 1998 and ending in June 1999. Id. ¶¶ 13-14. The F/A-18 C/D fighter planes, which are twice as loud as F-14s, cause significantly more noise and vibration than other aircraft. Id. ¶ 16. The plaintiffs in this case are more than 1,900 individuals who own more than 1,370 properties in the vicinity of NAS Oceana or Naval Auxiliary Landing Field (NALF) Fentress in Chesapeake, Virginia, where the F/A-18 C/D fighter planes were operated. See id. ¶ 1. These individuals owned their respective properties on or before July 1, 1999, the date on which plaintiffs allege that the flights of the F/A-18 C/D fighter planes substantially interfered with their use and enjoyment of their property, resulting in a taking of property without payment of just compensation in violation of the Fifth Amendment. Id. at ¶¶ 1, 17-19.
The procedural posture of this case, while not contested, is of far greater significance for purposes of deciding the government's motion. On April 5, 2001, nine plaintiffs filed a class action complaint alleging that the United States had taken their property. See Testwuide v. United States, 56 Fed. Cl. 755, 756 (2003). That complaint was based on the relocation of F/A-18 C/D fighter planes to the naval facilities in the Virginia Beach area --- the very same base closures and fighter plane relocations at issue in the present case. Id. at 756-57. That same day, the Testwuide plaintiffs filed a motion for class certification. Id. at 756, 759. Class certification was denied in an opinion dated June 17, 2003 --- two years and seventy-three days after the motion was filed. Id. at 755-56. In the same opinion, the Testwuide court found that instance to be the "rare" and "extraordinary" case that warranted certifying the issue of class certification for interlocutory appeal. Id. at 766-67. The Testwuide plaintiffs sought permission for an interlocutory appeal, but the Federal Circuit denied their petition. Testwuide v. United States, 73 F. App'x 395, 396 (Fed. Cir. 2003).
After the Federal Circuit declined to hear the interlocutory appeal, several other takings cases based on these same facts were filed. By the end of June 2005 (at which time the six-year limitations period would normally have expired), eight other cases were filed. Mot. to Dismiss at 3. Of these eight, seven were formally consolidated with Testwuide. Id. These nine cases together involved approximately 3,400 plaintiffs and 2,100 properties. Id.
It is uncontested that plaintiffs in this case could have been members of the Testwuide class had it been certified, see Pls.' Mem. of Law in Opp'n to Mot. to Dismiss ( ) (ECF No. 11) at 15-17; Mot. to Dismiss at 12, and did not join in any of the nine related cases. On May 15, 2007, two months before a trial of some test claims was to begin, the parties reached a settlement covering the vast majority of the claims contained in the nine cases. See Settlement Agreement and Release, Testwuide v. United States (ECF No. 246). The plaintiffs filed their complaint on September 5, 2007 --- eight years and sixty-six days after the alleged July 1, 1999 taking of their property. The government moved to dismiss the case for lack of jurisdiction under Rule 12(b)(1) of the Rules of the United States Court of Federal Claims ("RCFC"), contending that plaintiffs' claims were barred by the six-year limitations period of 28 U.S.C. § 2501.2 Mot. to Dismiss at 8-10. In the alternative, defendant moved for summary judgment under RCFC 56, on the ground that plaintiffs' claims should be barred by the doctrine of laches. Id. at 10-14.
The plaintiffs opposed the government's motion. See Pls.' Opp'n. They argued that the class action tolling doctrine from the Supreme Court decision American Pipe & Construction Co. v. Utah, 414 U.S. 538, 553-54 (1974), applied to make their complaint timely. See Pls.' Opp'n at 6-17. They also disputed the applicability of laches. Id. at 18-25. While the government's motion was pending, the Federal Circuit issued its decision in Bright v. United States, 603 F.3d 1273 (Fed. Cir. 2010), adopting American Pipe tolling in the context of a class action in which the limitations period of section 2501 would otherwise have expired before a class could be certified. After several rounds of supplemental briefing and a second oral argument, the government's motion was taken under submission.
The government's motion to dismiss turns on whether American Pipe class action tolling applies in the circumstances of this case. The taking of the avigation easements is alleged to have occurred on July 1, 1999, and the limitations period under section 2501 would normally have expired on July 1, 2005. This lawsuit was filed on September 5, 2007, which was two years and sixty-six days later. But class certification in Testwuide was pending for two years and seventy-three days --- from the filing of the complaint and motion on April 5, 2001 to the denial of the motion on June 17, 2003. If this period is added to the limitations period, then the plaintiffs' claims were timely filed.
Without question, the Federal Circuit in Bright adopted class action tolling for matters brought in our court. See Bright, 603 F.3d at 1284-90. Because that case concerned a classaction lawsuit in which the question of class certification was being considered after the limitations period would have expired, see id. at 1277-78, the defendant argues that class action tolling should be restricted to circumstances in which the period would expire before class certification is decided "or very shortly thereafter." Def.'s Supp'l Br. (ECF No. 41) at 10-11. The government maintains that class action tolling should not be allowed in a case such as this one, where two years and fourteen days remained of the limitations period when class certification was denied. See Def.'s Resp. (ECF No. 43) at 3. And it contends that Bright should not extend to cases in which it is not possible "to promote litigation efficiency by reducing a needless multiplicity of actions." Def.'s Supp'l Br. (ECF No. 41) at 10.3
The plaintiffs maintain, on the other hand, that the purpose of American Pipe tolling was not to preserve the claims of putative class members from expiring while the class question was pending, but rather to preserve the litigation efficiencies of the class action device. Pls.' Supp'l Mem. (ECF No. 40) at 7. They argue that Bright adopted class action tolling to avoid the litigation difficulties that would otherwise result --- a burden on our court to attempt to decide class certification with enough time left in the limitations period for individuals to opt into the suit, and on putative class members to forecast whether this can be done. Id. at 8 (citing Bright, 603 F.3d at 1288). The plaintiffs stress the Federal Circuit's concern that were class action tolling not allowed in our court, our class actions would be "cumbersome and unwieldy" compared to those in the district courts, where American Pipe would apply to cases brought under the Little Tucker Act, 28 U.S.C. § 1346(a)(2). Id. at 8-9 (quoting Bright, 603 F.3d at 1289). And they argue that the tolling approach urged by the government, which requires taking into account whether sufficient time is left of a limitations period when class certification is ruled upon, would amount to impermissible equitable tolling. Id. at 9. The plaintiffs note that the Federal Circuit expressly stated that class action tolling under RCFC 23 "is not triggered by equitable considerations," and that such a procedure "suspends or tolls the running of the limitations period for all purported members of a class once a class suit has been commenced." Pls.' Reply Supp'l Mem. (ECF No. 42) at 3 (quoting Bright, 603 F.3d at 1287-88).
While the question is not an easy one, after careful consideration the Court concludes that plaintiffs are correct about the...
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