Evans v. United States

United States Court of Appeals
for the Federal Circuit
__________________________

FRED E. EVANS, NANCY A. EVANS, RANDY W.
FROEBE, DEBRA J. FROEBE, GENEVA GRUBBS,
NORMA LOU HALL, SHIRLEY HENDRICKS,
DAVID HOUSER, GAIL HOUSER, PATRICK J.
O’BRYAN, Trustee of the Patrick J. O’Bryan Revocable
Living Trust Under Agreement Dated 9/7/2001, LESTER
ROARK, DONALD LEE ROPER, II, AND B. LORENE
SOPER
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
__________________________

2010-1303
__________________________

Appeal from the United States District Court for the
District of Kansas in case no. 09-CV-2096, Chief Judge
Kathryn H. Vratil.
__________________________

EDWARD L. BRIGHT, II, CLARENCE FORKNER,
HOMER E. HAMILTON, DEBBIE M. HAMILTON,
RICKY D. RUSSELL, BRADY J. STUART,
AND ROSE M. STUART,
Plaintiffs-Appellants,
AND
EVANS v. US 2

EARLEEN FAUVERGUE,
Plaintiff,
v.
UNITED STATES,
Defendant-Appellee.
__________________________

2010-1385
__________________________

Appeal from the United States District Court for the
Western District of Missouri in case no. 09-CV-5014,
Judge Richard E. Dorr.
__________________________

Decided: September 17, 2012
__________________________

MARK F. (“THOR”) HEARNE, II, Arent Fox, LLP, of
Clayton, Missouri, for all plaintiffs-appellants. With him
on the brief were MEGHAN S. LARGENT and LINDSAY S.C.
BRINTON.

KATHERINE J. BARTON, Attorney, Environmental and
Natural Resources Division, United States Department of
Justice, of Washington, DC, for defendant-appellee. With
her on the brief was IGNACIA S. MORENO, Assistant Attor-
ney General.
__________________________

Before RADER, Chief Judge, NEWMAN and PLAGER, Circuit
Judges.
3 EVANS v. US

PLAGER, Circuit Judge.
The base case in this litigation began as a Rails-to-
Trails takings suit in the Court of Federal Claims,
brought by a landowner against the United States for a
taking under the Fifth Amendment to the Constitution.
That suit, proposed as a class action suit, digressed into a
dispute with the Government over the applicability of the
statute of limitations to later-filing landowners. These
later-filing landowners, appellants here, were landowners
who own property similarly situated along the trail in
Kansas and Missouri, and sought to join the suit after it
was filed. The trial court held against the Kansas and
Missouri landowners, and denied joinder. 1 On appeal to
this court, that dispute was resolved in Bright v. United
States by a decision in the landowners’ favor. 2 The merits
case, with an enlarged group of plaintiffs, is now back in
the Court of Federal Claims.
Meantime, however, pieces of the litigation found
their way into Federal District Courts in Kansas and
Missouri. Again the statute of limitations issue regarding
later-filing landowners arose, and again the trial courts
held adversely to the landowners; however, those judg-
ments were rendered before this court’s decision was
issued in Bright. Now unresolved is what, if anything, in
the light of Bright remains of the two adverse district
court judgments? The parties, unable to agree, ask us to
solve that puzzle, which we do by vacating those judg-
ments and remanding the cases with instructions to the
district courts to dismiss them.

1 Fauvergue v. United States, 86 Fed. Cl. 82 (2009).
2 Bright v. United States, 603 F.3d 1273 (Fed. Cir.
2010).
EVANS v. US 4

BACKGROUND
Appellants are a group of landowners in several states
who sought to join an existing suit as plaintiffs against
the United States, brought in 2008 in the Court of Federal
Claims under the Tucker Act. 3 The initial plaintiff land
owner had characterized her suit as a class action on
behalf of herself and similarly situated persons; these
later-filing plaintiffs qualified as such persons. The
initial class action complaint had been filed before the
running of the six year statute of limitations for actions
brought under the Tucker Act; 4 however, the plaintiffs
who sought to join the suit (opt in) as named parties did
not do so until after the six year period had run.
The Government objected to the class plaintiff amend-
ing her complaint to include these additional plaintiffs,
arguing that her filing of the class action complaint did
not toll the statute of limitations as to putative class
members who had failed to file their claims within six
years of the date on which those claims accrued. The
Court of Federal Claims ruled in the Government’s favor,
and refused to permit the original plaintiff to amend her
complaint to permit joinder of these additional plaintiffs;
their suits were dismissed as time barred.
The plaintiffs timely appealed the Court of Federal
Claims’ decision to this court. They also filed what they

3 28 U.S.C. § 1491(a)(1) (“The United States Court
of Federal Claims shall have jurisdiction to render judg-
ment upon any claim against the United States founded
either upon the Constitution, or any Act of Congress or
any regulation of an executive department, or upon any
express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding
in tort.”).
4 28 U.S.C. § 2501.
5 EVANS v. US

termed “protective suits” under the “Little Tucker Act” 5 —
the Kansas property owners in the Kansas District Court
and the Missouri owners in the Missouri District Court.
In the District Court suits, the Government, relying on
the decision of the Court of Federal Claims that these
actions by the later-filing plaintiffs were all time barred,
moved to dismiss the complaints. Plaintiffs, in light of
their pending appeal to this court of the decision of the
Court of Federal Claims, moved to stay the district court
actions. They argued that the district court cases would
be moot if this court decided the appeal in the Court of
Federal Claims case in their favor. They also noted that,
since any appeals from the district court actions on this
issue would also be taken to this court, the district courts
before rendering judgment should have the benefit of the
views of this court. 6
The Government, however, foregoing the opportunity
to minimize the waste both of its own and plaintiffs’
litigation resources, not to mention that of scarce judicial
resources, opposed plaintiffs’ motions to stay, insisting
that the district court suits proceed despite the pending
appeal.
The district courts acquiesced in the Government’s in-
sistence, and undertook to decide the several arguments
the Government presented as to why the plaintiffs’ suits
should be dismissed. With regard to the late-
filing/statute of limitations argument, both trial courts
ruled, based on the reasoning and conclusions reached in

5 28 U.S.C. § 1346. The “Little Tucker Act” author-
izes the same types of suits to be brought against the
Government in the Federal district courts as those au-
thorized in the Court of Federal Claims under the “Big”
Tucker Act, so long as the damages sought do not exceed
$10,000.
6 28 U.S.C. § 1295.
EVANS v. US 6

the earlier Court of Federal Claims decision, that the
filing of the original class action did not toll the running
of the statute of limitations as to later similarly-situated
plaintiffs. These plaintiffs were therefore time barred.
While all this was going on in the district courts, the
initial appeal of the ruling by the Court of Federal
Claims, that the original class action filing did not toll the
statute of limitations as to the later-filing landowners,
had been proceeding in this court. In May 2010 we issued
our decision on that appeal. We held, based on governing
Supreme Court cases, that the Court of Federal Claims’
ruling was incorrect as a matter of law; we ordered the
trial court to permit the joinder of the later-filing plain-
tiffs’ claims and to proceed to address the merits of the
enlarged case. See Bright, 603 F.3d at 1290.
Confusedly, there were now of record two judgments
against the plaintiffs handed down by the district
courts—judgments which on their face were at least in
part inconsistent with our ruling in Bright. What to do?
The plaintiffs moved the Missouri District Court to recon-
sider its decision in light of this court’s Bright decision.
That court declined to do so, stating that the plaintiffs’
proper remedy was by way of appeal of that court’s deci-
sion to this court. Plaintiffs then appealed both district
court rulings to this court, which we consolidated into the
current case. (As an aside, though it has no direct bearing
on the outcome of this appeal, the enlarged class action
suit in the Court of Federal Claims has been proceeding
on the merits; we are advised that other plaintiffs, in
addition to those here, have been added to the suit. A
joint status report indicates that the parties are engaged
in settlement negotiations.)
7 EVANS v. US

DISCUSSION
What then is the issue remaining in this appeal?
Plaintiffs start out by asking us to remand the two dis-
trict court cases with instructions to those courts to
reconsider their rulings in light of this court’s decision in
Bright, believing that the district courts would then
correct their rulings and allow the cases to be voluntarily
dismissed without prejudice. Why do the plaintiffs care?
Plaintiffs argue that the outstanding judgments against
them may have important negative consequences—they
wish to litigate this case only in the Court of Federal
Claims, and having these outstanding district court
judgments against them on a key question may cause
confusion and uncertainty. By not following Bright, they
argue, these district court decisions are erroneous as a
matter of law and may possibly mislead courts, litigants,
and commentators, causing unnecessary confusion and
further litigation. In the alternative, plaintiffs urge that
if we proceed to review the merits of the dismissals we
should summarily reverse the district court decisions by
applying Bright to them.
One might have supposed that the Government, hav-
ing found itself mired in this messy litigation in three
different courts, would readily accede to plaintiffs’ pro-
posal for a voluntary dismissal of the district court cases.
This would get those cases laid to rest and permit the
Government to concentrate its efforts on the merits of the
Court of Federal Claims case. To so suppose would be a
mistake.
The Government opposed the plaintiffs’ effort in the
district courts to have the cases voluntarily dismissed,
and the Government opposes it here. The Government
argues first that plaintiffs’ appeal is defective—the appeal
itself should be dismissed as moot. That is because what
EVANS v. US 8

the plaintiffs propose—they want to have their suits in
the district courts dismissed—makes their appeal in effect
asking this court for a purely advisory opinion. Second,
the Government argues that, even if the appeal is not
moot, there are a host of technical problems with what
plaintiffs seek, ranging from there being no relevant
change in law to support a remand, to an argument that
the district court judgments should be affirmed because
this court’s decision in Bright eliminated the basis for the
plaintiffs’ claimed right to file suit in the district courts.
In their reply to the Government, plaintiffs shifted
their request to this court from one of a remand for the
district courts to reconsider their decisions in light of
Bright, to one of a remand with instructions for the dis-
trict courts to vacate the decisions as moot. The Govern-
ment, in lieu of oral argument and with our permission,
filed a Surreply. There the Government argued that
vacatur was unwarranted, in part because that argument
was waived since it was not raised in plaintiffs’ opening
brief, and because vacatur is inappropriate since it was
the plaintiffs’ voluntary decision to proceed with their
claims in the Court of Federal Claims that rendered these
appeals moot. The plaintiffs respond by noting it was this
court’s decision in Bright that rendered the district courts’
decisions no longer relevant, rather than something the
plaintiffs did.
When a case becomes moot on appeal, the “established
practice” is to vacate the decision below with a direction to
dismiss. United States v. Muningswear, Inc., 340 U.S. 36,
39 (1950). The Supreme Court has recognized exceptions
to this practice if the party seeking appellate relief fails to
protect itself or is the cause of the subsequent mootness.
See U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513
U.S. 18, 29 (1994) (vacatur inappropriate because parties
settled while appeal was pending); Karcher v. May, 484
9 EVANS v. US

U.S. 72, 83 (1987) (denying vacatur when a case is moot
only because the losing party failed to pursue appeal).
Here, the plaintiffs did not settle the case, nor did they
fail to appeal. Rather, this court resolved the controversy
with its decision in Bright. We decline to extend the
exceptions identified in U.S. Bancorp and Karcher, nei-
ther of which apply to this case.
Furthermore, we must confess to some puzzlement
over exactly what all this sturm und drang 7 is about. We
must wonder why plaintiffs originally sought on appeal
the roundabout course of a remand for the trial courts to
reconsider, rather than seeking a simple and straightfor-
ward vacature in the first instance. And even more
puzzling is why the Government, after Bright was de-
cided, pursued the course it chose in the district courts
and in this appeal, seeking with every possible argu-
ment—even if so thin as to border on the frivolous—to
avoid acquiescing in plaintiffs’ effort to have the district
court judgments put aside and to proceed on the merits in
the Court of Federal Claims.
It is the case that the tolling of the statute of limita-
tions issue was not the only ground on which the Gov-
ernment sought dismissals of the district court cases, and
it was not the only ground on which the district courts
ruled. But the issue before us in this appeal is not the
merits vel non of the district courts’ decisions in granting,
on whatever grounds, the Government’s motions to dis-
miss appellants’ cases. The issue is, in view of Bright and
our remand to the Court of Federal Claims for trial of the
takings issues that lie at the base of this case, whether
the determination of the ultimate law of the case is ad-

7 See Friedrich Maximilian von Klinger, Der
Wirrwarr, oder Sturm und Drang (1776).
EVANS v. US 10

vanced or hindered by having these “protective” suits,
clearly no longer relevant, left outstanding of record.
We are not persuaded by any of the Government’s ar-
guments that we should stay our hand and leave the law
of the case in a state of contention and confusion. Indeed,
as the Government itself stated, “[n]o case or controversy
remains with regard to Claimants’ takings claims in the
district court, claims that they insist they are pursuing
solely in the CFC.” The fact that plaintiffs did not sug-
gest a direct vacature until their Reply brief is irrelevant.
A court’s authority to issue a proper order in deciding a
case is not dependent on counsel’s noting or not noting
that authority. Furthermore, we do not sit to judge
arguments, but to determine whether the judgment
rendered below should stand.
In this appeal, it is clear beyond peradventure that
these district court cases can play no useful role in the
resolution of the merits case before the Court of Federal
Claims, which is the only case that now matters in this
litigation. Accordingly, in the interest of judicial effi-
ciency and economy, we summarily vacate the judgments
in these two district court cases, and remand with in-
structions that the trial courts promptly dismiss the
respective cases without prejudice, nunc pro tunc.
CONCLUSION
The judgments in the cases on appeal are vacated; the
cases are remanded to the respective trial courts with
instructions to dismiss the cases without prejudice, nunc
pro tunc. The remand ordered in Bright to the Court of
Federal Claims for decision on the merits remains fully in
effect.
COSTS
Costs awarded to plaintiffs.
11 EVANS v. US

VACATED AND REMANDED