Wisconsin Valley Imp. Co. v. U.S.

• Decision Date: 22 June 2009
• Docket Number: No. 08-4300.,08-4300.
• Parties: WISCONSIN VALLEY IMPROVEMENT COMPANY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

569 F.3d 331

WISCONSIN VALLEY IMPROVEMENT COMPANY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 08-4300.

United States Court of Appeals, Seventh Circuit.

Argued May 12, 2009.

Decided June 22, 2009.

Lori M. Lubinsky (argued), Axley Brynelson, Madison, WI, for Plaintiff-Appellant.

Megan McDermott (argued), Office of the United States Attorney, Madison, WI, for Defendant-Appellee.

Before EASTERBROOK, Chief Judge, SYKES, Circuit Judge, and VAN BOKKELEN, District Judge.^†

EASTERBROOK, Chief Judge.

Wisconsin Valley Improvement Company operates dams and other improvements in or near the Wisconsin River. Some of the dams need licenses from the Federal Energy Regulatory Commission. When the Company proposed to renew one hydro-power license, the United States Forest Service asked the Commission to condition renewal on steps that would curtail flooding of federally owned lands and compensate the United States for the loss of use. The Company replied that it enjoys flowage easements over these lands—easements that, the Company maintains, arose by the passage of time ("prescription") rather than written conveyances. According to the Company, these easements made the proposed conditions unnecessary and inappropriate.

A brief filed with the Commission in February 1996 rejoined that the Commission is entitled to impose the conditions whether or not the Company has a flowage easement and added that the Forest Service does not concede the Company's claim of a flowage easement. The Commission imposed the requested conditions. A petition for review was denied, for the most part, by Wisconsin Valley Improvement Co. v. FERC, 236 F.3d 738 (D.C.Cir.2001), which agreed with the Commission that the United States' title to the lands allows the Com-mission to curtail flooding and require compensation whether or not the Company has a flowage easement. Id. at 742-43.

Seventeen years after the Forest Service asked the Commission to impose conditions designed to reduce flooding, and more than 12 years after the Forest Service declined to concede that the lands are subject to a flowage easement, the Company filed this suit under the Quiet Title Act, 28 U.S.C. § 2409a. The statute of limitations for quiet-title suits against the United States is 12 years. 28 U.S.C. § 2409a(g). The district court concluded that the Company's claim had accrued no later than February 1996, when the Forest Service questioned the existence of the asserted flowage easement. Because the suit was not filed until June 2008 it is untimely. 2008 U.S. Dist. LEXIS 98092 (W.D.Wis. Dec. 2, 2008). The district court dismissed the suit under Fed. R.Civ.P. 12(b)(1), ruling that an untimely action against the United States does not come within the court's subject-matter jurisdiction.

On appeal, the United States defends that jurisdictional characterization. The argument starts from the premise that sovereign immunity limits the jurisdiction of the Judicial Branch. Suits against the United States are permissible only when authorized by statute; the period of limitations is a condition on the waiver of sovereign immunity; thus an untimely suit is outside the court's subject-matter jurisdiction. The problem with this argument lies in the premise: Sovereign immunity is not a jurisdictional doctrine. See United States v. Cook County, 167 F.3d 381 (7th Cir.1999). Subject-matter jurisdiction means adjudicatory competence over a category of disputes. See Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004); Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005). Multiple statutes authorize federal district courts to adjudicate suits arising under federal law in which the United States is a party. See, e.g., 28 U.S.C. § 1331, § 1346; 5 U.S.C. § 702. Section 2409a, in particular, permits the adjudication of quiet-title actions in which the United States claims an interest in real property. No more is needed for subject-matter jurisdiction. Timely suit is a condition of relief, to be sure, but time limits in litigation do not detract from a court's adjudicatory competence.

Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), resolved this point. It held that time limits in employment-discrimination suits against the United States or one of its agencies are subject to tolling and estoppel. That view is incompatible with a "jurisdictional" characterization of a statute of limitations. And Scarborough v. Principi, 541 U.S. 401, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004), extended Irwin to other time limits in suits where the United States or an agency is a defendant. After Irwin, Scarborough, and Cook County it is hard to understand how a "jurisdictional" tag may be attached to any period of limitations, whether or not the United States is a party. See, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).

The brief filed by the United States in this appeal does not mention any of the recent cases. Instead it relies on older decisions that used the word "jurisdiction" to describe any mandatory rule. For example, Munro v. United States, 303 U.S. 36, 58 S.Ct. 421, 82 L.Ed. 633 (1938), said that an attorney for the United States may not, by oversight, surrender the benefit of a time limit in tax-refund litigation. Munro, and many similar cases, instantiate the principle that negligence of a federal employee does not estop the United States to enforce the terms of statutes specifying when funds may be drawn from the Treasury. See, e.g., Office of Personnel Management v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990). This principle differs from a limit on subject-matter jurisdiction, which a court must enforce even if the parties stipulate to the court's authority. Block v. North Dakota, 461 U.S. 273, 292, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983), the most recent decision that has used the word "jurisdiction" when referring to the effect of a statute of limitations for suit against the national government, appears to be yet another example of the tendency, discussed in Kontrick and Eberhart, to employ the word loosely; not every reference to "jurisdiction" in the Supreme Court's large corpus of decisions means "subject-matter jurisdiction" in the contemporary sense.

After Irwin and Scarborough, time limits affecting suits against the United States are not among the few true jurisdictional rules that the judiciary must raise, and resolve, on its own even if the litigants agree that the suit is timely. Nor should a district court dismiss an untimely suit for want of jurisdiction, implying that plaintiff may present the claim to some other tribunal. The right disposition of a time-barred suit against the United States is dismissal with prejudice. The Department of Justice needs to abandon its rear-guard attempt to treat all conditions on waivers of sovereign immunity as "jurisdictional." It should recognize the modern under-standing of the difference between "jurisdiction" and other norms. See Collins v. United States, 564 F.3d 833 (7th Cir.2009). As we observed in Collins, some courts of appeals have been slow to understand the effect of Irwin and Scarborough and have continued to use the language of subject-matter jurisdiction. But in this circuit, at least, conditions on litigation against the United States may be "mandatory" without being "jurisdictional."

The Quiet Title Act requires action within 12 years after a claim accrues, and it adds: "Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States." This language could be read to say that the claim accrues as soon as a person knows that the United States claims title or any other interest in the real property. The Company knew of the national government's fee title much more than 12 years before filing suit. This would mean that any claim based on an easement accrues as soon as the United States acquires title to land that is subject to an (asserted) easement.

But the statute has not been understood in this way. Instead courts say that the claim accrues when a person knows, or in the exercise of reasonable diligence should have...