Evans v. United States

NOTE: ThiS order is nonprecedential United States Court of AppeaIs for the FederaI Circuit FRED E. EVANS, NANCY A. EVANS, RANDY W. FROEBE, DEBRA J. FROEBE, GENEVA'GRUBBS, NORMA LOU I-IALL, SHIRLEY HENDRICKS, DAVID HOUSER, GAIL HOUSER, PATRICK J. O’BRYAN, TRUSTEE OF THE PATRICK J. O’BRYAN REVOCABLE LIVING TRUST UNDE-R AGREEMENT DATED 9I7l2001, LESTER ROARK, DONALD LEE ROPER, II, AND B. LORENE SOPER, Plain,tiff-Appellants, _ V. UNITED STATES, Defendant-Appellee. 2010-1303 Appea1 from the United StateS DiSt1'ict C0urt for the District of Kansas in case n0. 09-CV-2096, Chief Judge Kathryn H. Vrati1. ON MOTION Bef0re PROST, Circuit Judge. 0 R D E R EVANS V. US 2 The appellants move to remand this case for further proceedings in light of this court’s decision in Brigh,t v. United States, 603 F.3d 1273 (Fed. Cir. 2009). The United States opposes. The appellants reply. Appellants are putative members of a class of land- owners that previously filed taking claims in the United States Court of Federal Claims. In that case, the Court of Federal Claims dismissed the appellants from the class, finding their claims barred because they did not opt in the class before the expiration of the statute of limitations under 28 U.S.C. § 2501. The appellants appealed to this court and also filed taking claims under the Little Tucker Act in the United States District Court for the District of Kansas. The district court dismissed the claims, finding the appellants’ claims untimely because the proceedings in the Court of Federal Claims did not toll the statute of limitation under 28 § U.S.C. 2401 This appeal followed. In Bright, this court reversed the Court`of Federal Claims’ judgment and remanded for further proceedings, holding that when a class action complaint is filed in the Court of Federal Claims and class certification is sought prior to expiration of the period, the limitations period is tolled during the period the court allows putative class members to opt in. The United States asserts, inter alia, that Bright does not control the disposition of this case. Based on the very limited arguments presented by the parties in the motions papers, and without deciding if the issues raised by the United States preclude reversal or remand in this case, we determine that the parties should brief the issues Accordingly, IT ls ORDERED THAT: (1) The motion is denied without prejudice to the par- ties discussing in the briefs whether remand is appropri- ate. 3 EVANS V. US (2) The stay of the briefing schedule is lifted. The appellants' opening brief is due within 30 days of the date of Hling of this order. FoR THE CoURT AUG 0 1 2011 Date /s/ J an Horbal_v J an Horbaly Clerk cc: Mark F. Hearne, II, Esq. Katherine J. Barton, Esq. 1 F"“ED W.S. COURT 0F APPEALS F0 THE FEDERAL C|RCUiT 20 AUG_ 01 2011 .IAN HORBALY CLERK § S