MILNE v. United States

In the United States Court of Federal Claims

NOT FOR PUBLICATION

No. 20-2079L

(Filed: October 28, 2024)

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STEPHEN C. MILNE, et al., )

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Plaintiffs, )

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v. )

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UNITED STATES, )

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Defendant. )

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Seth C. Wright, Polsinelli PC, Kansas City, MO, for plaintiffs. With him on the briefs

were David K. Schultz and E. Benton Keatley, Polsinelli PC, Kansas City, MO, and

Benjamin D. Brown and Alexander J. Noronha, Cohen Milstein Sellers & Toll PLLC,

Washington, DC.

Mark A. Pacella, Trial Attorney, Natural Resources Section, Environmental and

Natural Resources Division, U.S. Department of Justice, Washington, DC, for

defendant. With him on the briefs was Todd Kim, Assistant Attorney General, and

Tara M. Lewis, Ashley M. Carter, and Sarah Ruckriegle, Trial Attorneys, Natural

Resources Section, Environmental and Natural Resources Division, U.S. Department

of Justice, Washington, DC.

ORDER1

BONILLA, Judge.

Thirty-five landowners along the Missouri River in Iowa, Kansas, Missouri,

and Nebraska allege the U.S. Army Corps of Engineers (Corps) intentionally

contributed to and directly caused near-annual atypical flooding of their properties

1 This case was transferred to the undersigned for adjudication on October 3, 2022, pursuant to

Rule 40.1(b) of the Rules of the United States Court of Federal Claims (RCFC). At that time, and

continuing through January 5, 2024, the matter was stayed pending final resolution of an appeal to

the United States Court of Appeals for the Federal Circuit in a related case, Ideker Farms, Inc. v.

United States, 71 F.4th 964 (Fed. Cir. 2023), reh’g en banc denied (Nov. 29, 2023) (per curiam).

between 2007 and 2024. Plaintiffs contend the destructive floods flowed from policy

changes in 2004 that deprioritized flood control in favor of allowing the river to run

more naturally to protect wildlife and the environment. The landowners claim the

Corps’ actions resulted in a permanent flowage easement across their land, effecting

a taking of their real and personal property without just compensation in violation of

the Fifth Amendment to the United States Constitution.

Before the Court is defendant’s motion to dismiss plaintiffs’ amended

complaint for a lack of subject matter jurisdiction or, alternatively, for failure to state

a claim upon which relief can be granted pursuant to RCFC 12(b)(1) and 12(b)(6).

The government submits that plaintiffs’ claims accrued more than six years prior to

the commencement of this action and, further, that plaintiffs fail to allege cognizable

property interests or plead their claims with the requisite specificity. In support and

opposition to the pending dispositive motion, the parties present near identical

arguments addressed by this Court in a contemporaneously issued decision in a

related case, Nolan v. United States, __ Fed. Cl. __, No. 21-122 (Fed. Cl. Oct. 28, 2024)

(ECF 24). For the reasons stated in Nolan, the Court similarly finds that the accrual

date applicable to the plaintiffs in this case is between late 2013 and early 2014

(i.e., March 2014). Because their complaint was filed more than six years later

(i.e., December 30, 2020), plaintiffs’ claims are similarly time-barred and must be

dismissed for a lack of subject matter jurisdiction.2

In reaching this conclusion, the Court considered three additional arguments

advanced by plaintiffs in this case that were not raised in Nolan. None changes the

outcome. First, when the government raised the statute of limitations defense during

the initial status conference before the undersigned on May 29, 2024, the Court

expressed its reluctance to relitigate an issue seemingly addressed in Ideker Farms,

Inc. v. United States, 151 Fed. Cl. 560, 595–97 (2020), affirmed in part, vacated in

part, and remanded, 71 F.4th 964 (Fed. Cir. 2023). However, with the benefit of

briefing and an examination of the pleadings, the Court has determined it has no

choice but to dismiss this case as time-barred. Subject matter jurisdiction is a

threshold issue that cannot be waived by the parties or become law of the case.

See RCFC 12(h)(3) (“If the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.”); Folden v. United States, 379 F.3d

1344, 1354 (Fed. Cir. 2004) (“Subject-matter jurisdiction may be challenged at any

time by the parties or by the court sua sponte.”) (citing Fanning, Phillips & Molnar

v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)); Drury v. United States, 52 Fed. Cl. 402,

404–05 (2002) (“[T]he law of the case doctrine does not limit a court’s ability to revisit

prior [jurisdictional] decisions of its own or of a coordinate court.”).

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As in Nolan, in dismissing this action for lack of subject matter jurisdiction, the Court does not reach defendant’s

alternative dispositive motion under RCFC 12(b)(6).

2

Relatedly, plaintiffs assert the government should be judicially estopped from

arguing against the application of the claim accrual date adopted in Ideker Farms.

In support, plaintiffs cite Prakhin v. United States, 122 Fed. Cl. 483 (2015), wherein

the Court describes the government advocacy for adopting a prior case’s accrual date.

Id. at 486–87. Plaintiffs argue Prakhin evidences the government taking a prior

inconsistent litigation position than that advanced here. The argument is misplaced.

Without addressing whether judicial estoppel applies in this context, the doctrine

requires that the party who purportedly took an inconsistent litigation position be

successful in the earlier proceeding. New Hampshire v. Maine, 532 U.S. 742, 750–51

(2001). In Prakhin, this Court initially and ultimately rejected the government’s

accrual date adoption argument. 122 Fed. Cl. at 489–90; 131 Fed. Cl. 706, 718–19

(2017). Accordingly, the doctrine of judicial estoppel does not come into play in this

case. See New Hampshire, 532 U.S. at 750–51 (“Absent success in a prior proceeding,

a party’s later inconsistent position introduces no ‘risk of inconsistent court

determinations,’ and thus poses little threat to judicial integrity.”) (citations omitted).

Finally, plaintiffs request that the Court defer ruling upon defendant’s

dispositive motion to allow “fulsome discovery” and, perhaps, allow the matter to

proceed to trial. ECF 38 at 37–38. However, plaintiffs do not specify the discovery

they seek let alone explain how the unspecified discovery (or trial) is expected to

demonstrate that their claims are not time-barred. On these critical issues, it is

important to note that, as in Nolan, the plaintiffs in this case modeled their claims

after the factual and legal assertions pled and exhaustively litigated in Ideker Farms,

and that counsel in this case have and continue to serve as plaintiffs’ counsel in Ideker

Farms. As explained in the Court’s contemporaneously issued decision in Nolan,

plaintiffs’ claims are time-barred because they were aware or should have been aware

of the events ostensibly fixing the government’s liability more than six years prior to

commencing this action. The Court is unaware of any jurisdictional discovery to be

propounded upon the government or any third party—and plaintiffs have failed to

point to anything—that would demonstrate otherwise. For these reasons, plaintiffs’

generic request to conduct discovery in the event the Court is inclined to grant

defendant’s motion to dismiss is denied. See Nuance Commc’ns, Inc. v. Abbyy

Software House, 626 F.3d 1222, 1235–36 (Fed. Cir. 2010) (“[A] trial court may deny

jurisdictional discovery when it is clear that further discovery would not demonstrate

facts sufficient to constitute a basis for jurisdiction, or where the request for discovery

is based on little more than a hunch that it might yield jurisdictionally relevant

facts[.]”) (quotation marks and citations omitted).

CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss plaintiffs’ amended

complaint for lack of subject matter jurisdiction (ECF 37) is GRANTED. The Clerk

of Court is directed to ENTER judgment accordingly.

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It is so ORDERED.

___________________

Armando O. Bonilla

Judge

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