Thursday, July 12, 2007

Is the Statute of Limitations in the Tucker Act Jurisdictional?

Sticking with problems of determining what is jurisdictional and what is not, the Supreme Court will consider a variant in the fall when it hears arguments in John R. Sand & Gravel Co. v. U.S., 06-1164 (cert. granted May 29, 2007). In that case, John R. Sand leased land in Michigan that included a landfill. During the lease, the landfill was placed on the National Priorities List, and the EPA ordered remedial action. As part of the remedial action, the EPA erected fences and other barriers that interfered with John R. Sand’s business use of the land, both inside and outside the contaminated areas. John R. Sand filed suit against the EPA in the Court of Federal Claims under the Tucker Act, alleging a Fifth Amendment takings without just compensation.

The Government moved for judgment on the pleadings, contending that John R. Sand’s suit was time-barred by 28 U.S.C. § 2501, which states: “Every 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.” The Government argued that John R. Sand’s claim accrued in 1992 when the EPA first physically occupied the property, and that John R. Sand’s complaint was filed in 2002, outside of the six-year limitations period.

The court denied the motion in part, reasoning that the Government had not borne its burden of establishing an accrual date more than six years prior to the filing of the complaint. After a bench trial on the merits, the court found that John R. Sand’s claims were timely but that John R. Sand had not proven an unconstitutional takings.

John R. Sand appealed to the Federal Circuit. The Government opposed on the merits but did not challenge the trial court’s finding that the claims were timely. Indeed, at oral argument before the Federal Circuit, the Government agreed with John R. Sand that the takings claim accrued in 1998 and was not time-barred. However, an amicus, the Metamora Group, raised the jurisdictional challenge and argued that the claims were time-barred because they accrued by 1994, at least eight years before the complaint was filed.

A divided panel of the Federal Circuit (Schall and Lourie, JJ.) agreed with the amicus and held that the statute of limitations restricts the subject-matter jurisdiction of the Court of Federal Claims and ordered the suit dismissed. John R. Sand & Gravel Co v. U.S., 457 F.3d 1345 (Fed. Cir. Aug. 9, 2007). The court held that the statute of limitations in the Tucker Act, a limitation on the waiver of sovereign immunity, creates a jurisdictional prerequisite that cannot be waived by the parties. Judge Newman dissented, reasoning that the statute of limitations in the Tucker Act should be treated as a waivable affirmative defense like other statutes of limitations.

The question presented is whether the statute of limitations in the Tucker Act, 28 U.S.C. § 2501, limits the subject-matter jurisdiction of the Court of Federal Claims. It will be interesting to see how the Court answers this question, particularly in light of Bowles v. Russell. The Petitioner’s brief on the merits is due August 3, 2007.

Below are relevant links:

Petition for Certiorari

Brief in Opposition

Reply Brief

Official Docket Sheet

Jeffrey K. Haynes, Beier Howlett, P.C., counsel of record for Petitioner

Gregory C. Sisk, Orestes A. Brownson Professor of Law at the University of St. Thomas School of Law, co-counsel for Petitioner

--Scott Dodson

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