Daingerfield Island Protective Soc. v. Babbitt, 93-5218

• Decision Date: 08 February 1995
• Docket Number: No. 93-5218,93-5218
• Parties: , 30 Fed.R.Serv.3d 1037 DAINGERFIELD ISLAND PROTECTIVE SOCIETY, et al., Appellants, v. Bruce BABBITT, Secretary, U.S. Department of Interior, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 442

40 F.3d 442

309 U.S.App.D.C. 186, 30 Fed.R.Serv.3d 1037

DAINGERFIELD ISLAND PROTECTIVE SOCIETY, et al., Appellants, v. Bruce BABBITT, Secretary, U.S. Department of Interior, et

al., Appellees.

No. 93-5218.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 7, 1994.

Decided Nov. 22, 1994.

As Amended Nov. 22, 1994.

Rehearing and Suggestion for Rehearing In Banc Denied Feb. 8, 1995.

Ronald J. Wilson, Washington, DC, argued the cause, for appellants.

Mark E. Nagle, Asst. U.S. Atty., Washington, DC, argued the cause for appellees. On brief for the government appellees were Eric H. Holder, Jr., U.S. Atty., and John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, DC.

On brief for appellees Richmond, Fredericksburg and Potomac R. Co. and Potomac Greens Associates Partnership was Thomas F. Farrell II, Alexandria, VA.

Before WALD, WILLIAMS and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

Opinion dissenting in part filed by Circuit Judge WALD.

KAREN LeCRAFT HENDERSON, Circuit Judge:

This case is before us for a second time, after remand to the district court. The facts and procedural history are set out in detail in the district court decisions ¹ and we provide here only a brief summary.

In 1970 the Secretary of the Interior signed a land exchange agreement (Exchange Agreement) under which the National Park Service (Park Service) was to convey an easement for an interchange over the George Washington Parkway (Parkway) to Charles Fairchild & Co. (Fairchild) in exchange for title to Dyke Marsh, a 28.8 acre wetlands tract along the Potomac River. The purpose of the easement was "to establish adequate perpetual access to, including ingress and egress from, the Parkway to the Potomac Center tract," a parcel south of the Parkway that Fairchild was then leasing from appellant Richmond, Fredericksburg & Potomac Railroad Co. (RF & P) with the intent to develop a commercial/residential complex called "Potomac Greens." Joint Appendix (JA) 43. The agreement required, inter alia, that before construction of the Parkway interchange its design be approved by the Park Service, the National Capital Planning Commission and the Fine Arts Commission. Fairchild signed the agreement and deeded Dyke Marsh to the Park Service in July 1971 but, when its attempts to obtain the required design approval proved unsuccessful, Fairchild terminated its lease with RF & P. In 1983, the Park Service finally approved an interchange design submitted by RF & P and deeded an easement to the railroad as Fairchild's successor under the Exchange Agreement.

In 1986, after RF & P made public its plans for developing Potomac Greens, Daingerfield filed this action alleging that both the Exchange Agreement and the interchange design approval violated various federal laws. Initially, the district court granted summary judgment to the Park Service on the grounds that the challenge to the Exchange Agreement was barred by laches and the challenge to the design approval had been mooted by congressional action requiring the Park Service to conduct an environmental impact study, which it had done. Daingerfield Island Protective Society v. Hodel, 710 F.Supp. 368 (D.D.C.1989). Daingerfield appealed and this court summarily affirmed the mootness ruling as it applied to Daingerfield's National Environmental Policy Act claim. The court then reversed the judgment in all other respects and remanded for further consideration of the remaining claims. Daingerfield Island Protective Society v. Lujan, 920 F.2d 32 (D.C.Cir.1990), cert. denied, 502 U.S. 809, 112 S.Ct. 54, 116 L.Ed.2d 31 (1991). On remand, the district court again granted summary judgment to the Park Service, holding that (1) the challenge to the Exchange Agreement was barred by the six-year statute of limitations set out in the Tucker Act, 28 U.S.C. Sec. 2401, see Daingerfield Island Protective Society v. Lujan, 797 F.Supp. 25 (D.D.C.1992), and (2) the interchange design approval did not violate any of the federal laws at issue, see Daingerfield Island Protective Society v. Babbitt, 823 F.Supp. 950 (D.D.C.1993).

Daingerfield again appealed the district court's judgment. In an unpublished order this court summarily affirmed the judgment as it applied to claims alleged under the Mount Vernon Memorial Highway Act, the Capper-Cramton Act and the rulemaking provisions of the Administrative Procedure Act. The court further held that the Tucker Act's six-year statute of limitations governed the appellants' challenge to the Exchange Agreement and that that cause of action had accrued more than six years before the action was filed. Daingerfield Island Protective Society v. Babbitt, No.93-5218, 15 F.3d 1159 (Table), 1993 WL 557107 (D.C.Cir. Dec. 13, 1993). We now address the remaining issues on appeal and hold that (1) the government did not waive its statute of limitations defense and the Exchange Agreement challenge is accordingly barred by the Tucker Act and (2) the design approval does not contravene any of the cited laws.

I.

First, we consider whether Daingerfield's challenge to the Exchange Agreement is barred by the Tucker Act's six-year statute of limitations. Daingerfield asserts that the government waived the limitations defense by (1) failing to plead it with sufficient specificity and (2) waiting until after remand to assert it by motion. The government responds that the defense cannot be waived because it is jurisdictional and, in any event, was not waived here. Because we conclude the limitations defense was not waived, we affirm the district court's limitations ruling without deciding whether the defense might under other circumstances be waivable.

First, we conclude that the government adequately pleaded the limitation defense in its answer, which reads in part: "Plaintiffs' claims are barred by the applicable statute of limitations." JA 38. While this boilerplate language does not cite the specific statute applicable here, it nevertheless satisfies the requirement of Federal Rule of Civil Procedure 8(c) that affirmative defenses be pleaded. The purpose of that rule is to put opposing parties on notice of affirmative defenses and to afford them the opportunity to respond to the defenses. Blonder-Tongue Labs., Inc. v. University of Illinois Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 1453-54, 28 L.Ed.2d 788 (1971). Thus while a limitations defense must "be asserted in a responsive pleading," it " 'need not be articulated with any rigorous degree of specificity,' " and is " 'sufficiently raised for purposes of Rule 8 by its bare assertion.' " Kulzer v. Pittsburgh-Corning Corp., 942 F.2d 122, 125 (2d Cir.1991) (quoting Santos v. District Council of New York City, 619 F.2d 963, 967 (2d Cir.1980)) (emphasis in original), cert. denied, --- U.S. ----, 112 S.Ct. 1482, 117 L.Ed.2d 624 (1992). This is particularly true here where, as we observed in our summary disposition order, "it is clear that the six-year statute of limitations contained in 28 U.S.C. Sec. 2401 governs [Daingerfield's claims]."

Nor do we believe the government abandoned its limitations defense by failing to assert it before the first appeal. Under the usual rule, an affirmative defense is deemed waived if it "has not been raised in a pleading, by motion, or at trial." National Treasury Employees Union v. IRS, 765 F.2d 1174, 1176 n. 1 (D.C.Cir.1985) (quoting C. Wright & A. Miller, Federal Practice and Procedure Sec. 1394, at 872 (1969)). As we have already noted, the government adequately raised the limitations defense in its answer--it was not required to reassert the defense in its subsequent successful summary judgment motion. In urging abandonment, Daingerfield relies on our recent decision in United Mine Workers of Am. 1974 Pension v. Pittston Co., 984 F.2d 469 (D.C.Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 3039, 125 L.Ed.2d 726 (1993), in which this court affirmed the district court's holding that one of the defendants "abandoned its affirmative defenses," including a limitations defense, "by not raising them prior to summary judgment." Id. at 478. We find that holding inapposite. The defendant in Pittston apparently waived its defenses from the beginning, having never asserted them in any pleading or motion in the district court. ² Thus, the Pittston court simply found that waiver precluded the defendant from raising those defenses for the first time after summary judgment had been granted in the plaintiff's favor. Our holding here is consistent with that finding.

For the foregoing reasons, we conclude the government did not waive its statute of limitations defense and that Daingerfield is therefore barred by the six-year limitations period from challenging the government's decision to enter into the Exchange Agreement. Accordingly, we need address here only Daingerfield's challenge to the interchange design approved by the Park Service.

II.

Daingerfield contends that the approval of the interchange design violated (1) the National Park Service Organic Act, (2) the National Historic Preservation Act, (3) the National Capital Planning Act and (4) Executive Order No. 11988 and guidelines adopted pursuant thereto. We disagree and conclude the Park Service, and the other agencies involved, adequately complied with the cited laws.

First, Daingerfield argues that the interchange design approval violated the National Park Service Organic Act which requires, in general terms, that the Park Service

shall promote and regulate the use of the Federal areas known as national parks, monuments, and reservations hereinafter specified, except such as are under the jurisdiction of the Secretary of the Army, as provided by law, by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to...