Argument preview: John R. Sand and Gravel v. US

The following is by Christopher R. Pudelski, an associate in Akin Gump’s DC office. He worked on an amicus brief supporting respondent on behalf of the Metamora Group.

In John R. Sand & Gravel v. United States, 06-1164, the Court will determine whether the six-year statute of limitations in 28 U.S.C. § 2501 of the Tucker Act limits the subject matter jurisdiction of the Court of Federal Claims. The Court is asked to decide whether this provision is a non-waivable, jurisdictional limit on the subject matter of the Court of Federal Claims or is a waivable and routine statutory bar that does not limit the court’s subject matter jurisdiction. The decision is likely to affect the litigation behavior of plaintiffs who file suit against the United States. If the Court concludes that the provision is a jurisdictional limitation on the court’s subject matter jurisdiction, plaintiffs filing suit against the United States under the Tucker Act will be required to plead the timeliness of their cause of action as a jurisdictional prerequisite to advancing their claims instead of waiting for the government to potentially raise a statute of limitations defense.

Jeffrey K. Haynes of Bloomfield Hills, Michigan will argue on behalf of petitioner John R. Sand & Gravel Company. Malcom Stewart, an Assistant to the Solicitor General, will argue on behalf of respondent United States.

In May, 2002, petitioner filed suit against the United States, alleging that the government had permanently taken its sand and gravel leasehold without just compensation during a hazardous waste remediation effort pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq. The government raised a statute of limitations defense under 28 U.S.C. § 2501, arguing that the suit was time barred because the alleged taking occurred in 1992. The Court of Federal Claims dismissed petitioner’s complaint in part as barred by the six-year statute of limitations contained in Section 2501. Following a bench trial on the remainder of the complaint, the court entered judgment in favor of the United States. The court concluded that the remaining claims were timely filed because they accrued in 1998, but the court rejected petitioner’s claims on the merits.

On appeal to the Federal Circuit, the parties continued to dispute the underlying merits of the takings claim. The United States did not raise its statute of limitations defense; however, the Metamora Group as amicus curiae did. Amicus is a group of companies that contributed waste to the landfill. Under a consent decree with the United States, the group agreed to purportedly provide “any compensation that the United States may be required to pay to the property owner.” The Federal Circuit did not address the merits of petitioner’s takings claim, but instead held that Section 2501 was jurisdictional, and thus time barred. The court concluded that Section 2501 is a non-waivable condition of the government’s waiver of sovereign immunity that must be addressed sua sponte. The court dismissed the claims as untimely because they accrued in 1994, more than six years from the time of suit.

8 U.S.C. § 2501, which governs claims brought against the United States under the Tucker Act, 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.”

John R. Sand argues that Section 2501 is an unexceptional procedural statute of limitations that does not limit the subject matter jurisdiction of the Court of Federal Claims. Petitioner argues that the plain language of the statutory bar assumes that the court already “has jurisdiction,” and therefore cannot operate to limit it. Petitioner points to antecedent statutory language under Section 1491(a)(1) of the Tucker Act suggesting that the government has unequivocally waived sovereign immunity on all suits against the United States eligible for relief under the Act. Petitioner also argues that the legislative history of Section 2501 and the historical context in which it was enacted confirm that it is not jurisdictional.

The principle response of the United States is that the Supreme Court has consistently interpreted Section 2501 as a non-waivable jurisdictional bar, even when the Court was presented with the same statutory language as contained in the current version of Section 2501. While petitioner argues that recent Supreme Court precedent directs that statutes of limitations against the government be applied in the same manner as they are to private parties – as a waivable statute of limitations defense, the United States argues that these cases do not speak to the unique question presented by Section 2501, which the Court for over 125 years has consistently construed as a jurisdictional provision. The United States also argues that the unique nature of Section 2501 – that it is tied to a particular court and does not apply in state judicial proceedings – suggests that the provision is a condition on the government’s waiver of sovereign immunity.

Petitioner also argues that the statutes in Title 28 of the U.S. Code granting subject matter jurisdiction to the Court of Federal Claims speak forthrightly in the language of “jurisdiction,” while procedural statutes such as Section 2501 address jurisdiction only to confirm a prior grant of it. The United States argues that the 1948 Act placing the provision in Title 28 expressly stated that no inference should be drawn regarding the provision’s meaning from its placement. Moreover, last Term’s decision in Bowles v. Russell, 127 S. Ct. 2360 (2007), construed the time limit for filing a notice of appeal in a federal civil case as jurisdictional, even though the provision was in a different chapter of Title 28 than the chapter defining jurisdiction.

The case also presents a potentially interesting twist raised by the Metamora Group as amicus curiae in support of the United States. Metamora Group argues that the court should either affirm the Court of Appeals or, in the alternative, dismiss the writ of certiorari as improvidently granted on the ground that the court of appeals did not need to reach the question whether Section 2501 is jurisdictional. Metamora argues that, although the government waived the statute of limitations defense in the Federal Circuit, Metamora as amicus raised the defense. Metamora argues that the Court need not confront the more difficult jurisdictional question presented because the court of appeals was required to address the issue as a non-jurisdictional defense. Disclosure: Akin Gump represents the Metamora Group in this proceeding.