Pajarito Plateau Homesteaders, Inc. v. United States

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 8 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

PAJARITO PLATEAU
HOMESTEADERS, INC., a nonprofit
corporation; TERESA QUINTANA,
on behalf of the Estate of Samuel
Valencia; MARCOS GOMEZ, No. 03-2050
on behalf of themselves and all others
similarly situated,

Plaintiffs,

and

SYLVIA MOLINA, on behalf of the
Estate of Jose M. Gomez,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA;
SPENCER ABRAHAM, Secretary,
U.S. Department of Energy;
DONALD H. RUMSFELD,
as Secretary of the United States
Department of Defense; UNITED
STATES CORPS OF ENGINEERS;
JOHN DOES 1-10,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-01-1166 JC/DJS)
Submitted on the briefs:

Sylvia Molina, Pro Se.

David C. Iglesias, United States Attorney, Raymond Hamilton, Assistant United
States Attorney, Albuquerque, New Mexico, for Defendants-Appellees.

Before HARTZ , BALDOCK , and McCONNELL , Circuit Judges.

McCONNELL , Circuit Judge.

Plaintiff Sylvia Molina appeals from an order of the district court

dismissing this action under Fed. R. Civ. P. 12(b) based on a lack of subject

matter jurisdiction. We affirm. 1

The acts which form the basis of plaintiffs’ complaint occurred from 1942

to 1945 on the Pajarito Plateau in New Mexico. At that time, the United States

government appropriated land for the construction and operation of the Manhattan

Engineering District in Los Alamos, New Mexico. The plaintiffs allege that the

United States took their property for this project without adequate compensation.

Moreover, they claim that Hispanic landowners were denied compensation

1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

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granted to Anglo landowners under similar circumstances. They further allege

that some plaintiffs were falsely imprisoned and others were forced to work on

the Manhattan Project without proper compensation, and that some plaintiffs were

subjected to medical experimentation by being exposed to high levels of radiation.

They base their legal claims on the Fourth, Fifth, Thirteenth, and Fourteenth

Amendments, as well as 42 U.S.C. §§ 1982 and 1994 and “customary

international law.” Plaintiffs sought to have this action certified as a class action.

The district court dismissed the case, holding that the statute of limitations

had run and, consequently, it lacked jurisdiction over the matter. The court noted

that the Fifth Amendment was the only relevant constitutional amendment

permitting monetary awards against the United States and that the applicable

statute of limitations, 28 U.S.C. § 2401(a), is six years. 2 The court held that

plaintiffs’ claim that they had been intimidated into not filing earlier did not toll

the statute. The court further held that the Fourth Amendment, the due process

clauses of the Fifth and Fourteenth Amendments, and the Thirteenth Amendment

do not directly provide for damages claims. 3 On appeal, Ms. Molina argues that

2
28 U.S.C. § 2401 requires that tort claims against the United States be
presented to the appropriate agency within two years after the claim accrues and
be filed within six years after the claim accrues. The record contains no
indication that plaintiffs have presented their claims to any federal agency.
3
Plaintiffs did not contest the government’s observation that the Federal
Tort Claims Act does not apply to this action because the acts alleged occurred
(continued...)

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the district court erred in dismissing the Fifth Amendment compensation claim on

statute of limitations grounds.

This case involves allegations of wrongdoing that, if correct and

substantiated, would indeed be shocking. By plaintiff’s own account, these

allegations have drawn the attention of New Mexico’s congressional delegation

and have been investigated by the relevant departments of government, though the

results of those investigations were not to the plaintiff’s liking. For purposes of

this appeal, this Court is not called upon to make any judgment about what

happened, or did not happen, on the Pajarito Plateau in the 1940s. The sole

question before us is whether–accepting plaintiff’s well-pleaded allegations as

true and construing them in the light most favorable to her–the district court was

correct that this case is barred by the statute of limitations. Sterlin v. Biomune

Sys. , 154 F.3d 1191, 1194-95 (10th Cir. 1998).

Ms. Molina is proceeding pro se. She and the other plaintiffs were

represented by counsel in the district court. After a falling-out between counsel

and some or all of the plaintiffs, Ms. Molina filed and signed the notice of appeal

on behalf of herself and “all named individual plaintiffs.” However, a “notice of

appeal must be signed by the appellant’s counsel or, if the appellant is proceeding

3
(...continued)
before passage of the Act in 1945.

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pro se, by the appellant.” 10th Cir. R. 3.1; see also Fed. R. App. P. 3(c)(2).

A non-lawyer may not represent another individual on appeal and cannot file

a notice of appeal on another’s behalf. See Gonzales v. Wyatt , 157 F.3d 1016,

1022 & n.2 (5th Cir. 1998). Therefore, Ms. Molina may appeal the district court’s

order only as it applies to herself and the estate of Jose M. Gomez.

Ms. Molina argues first that, by enacting Pub. L. No. 105-119, § 632,

111 Stat. 2523 (1997), Congress “expressly and knowingly, and in an intelligent

manner waived the statute of limitations.” This statute provides that the

federal government shall transfer fee title to certain real property to Los Alamos

County and to the Secretary of the Interior to be placed in trust for Pueblo of

San Ildefonso. Prior to making this conveyance, Section 632(c) required the

Secretary of Energy to conduct a title search on each parcel of land to be

conveyed, including an analysis of any legal claims to the lands, and to report the

results of the investigation to congressional defense committees. Ms. Molina

contends that the purpose of this requirement was “to have the interests of the

former owners [the plaintiffs] of lands on the Los Alamos plateau fairly examined

and respected.” Although it is not contained in the record on appeal, Ms. Molina

informs this court that then-Secretary of Energy Bill Richardson conducted the

title search required by the statute and reported the results in a letter to the Senate

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Armed Services Committee–results which Ms. Molina claims “misrepresent the

true status of the lands.”

Contrary to Ms. Molina’s interpretation, however, Pub. L. No. 105-119

makes no mention of statutes of limitations and creates no cause of action.

Congress required only that the Secretary of Energy investigate claims to the land

and report to Congress. By Ms. Molina’s own admission, then-Secretary

Richardson complied with that directive. Nothing in the statute authorizes the

federal courts to second-guess the Secretary’s conclusions, or plaintiffs to avoid

the effect of otherwise applicable statutes of limitations.

Second, Ms. Molina contends that the claims of the plaintiffs did not accrue

until “about the 1997 time period.” According to her brief, the original taking in

the 1940s was temporary, and became permanent only in 1997, when the

Department of Energy concluded that the land was no longer needed and should

be disposed of. The sole support for her claim that the original taking was

temporary, however, is Pub. L. No. 79-635, 60 Stat. 886 (1946). That statute is

plainly irrelevant to this controversy. It provided for the return of certain surplus

property–the Chamberlin Hotel in Fort Monroe, Virginia–to its former owners.

The statute has no application to lands involved in the Los Alamos Project, and

establishes no general principle that takings for government projects are deemed

temporary.

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 Finally, Ms. Molina points to various occasions in which Congress has

enacted legislation compensating landowners for property taken in the past for

various federal endeavors, notwithstanding applicable statutes of limitations.

She contends that “the precedent established by the authority with jurisdiction in

this matter–the Congress, has been to consistently not uphold the statute of

limitations.” It is true that on numerous occasions Congress has provided

compensation for past wrongs, and that in doing so it is not bound by statutes of

limitations. Such actions are in the service of a broad vision of justice, but they

are not compelled by law. The federal courts are courts of law, and have no

jurisdiction to provide compensation where the law does not provide means of

redress. When individuals believe they were wronged in the past, and the statute

of limitations has run, their remedy lies with the legislative branch.

The judgment of the district court is AFFIRMED.

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