frazer/exton Development, L.P. v. United States

In the United States Court of Federal Claims

No. 18-1081L

(Filed: May 17, 2019)

NOT FOR PUBLICATION

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WHITELAND HOLDINGS, L.P. and *

FRAZER/EXTON DEVELOPMENT, *

L.P., *

* Motion for Reconsideration; RCFC

Plaintiffs, * 59(a)(1); Failure to Raise Argument;

* Rearguing Original Position; Motion for

v. * Relief; RCFC 60(b); Legal Error;

* Extraordinary Circumstances

THE UNITED STATES, *

*

Defendant. *

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OPINION AND ORDER

Plaintiffs Whiteland Holdings, L.P. (“Whiteland”) and Frazer/Exton Development, L.P.

(“Frazer/Exton”) move, pursuant to Rule 59(a)(1) of the Rules of the United States Court of

Federal Claims (“RCFC”), for reconsideration of the court’s February 8, 2019 opinion and order

dismissing their claim for lack of subject-matter jurisdiction or, alternatively, relief from that

order pursuant to RCFC 60(b). For the reasons set forth below, the court denies Whiteland and

Frazer/Exton’s motion.

I. BACKGROUND

Whiteland and Frazer/Exton allege that the federal government’s operations and disposal

methods at the Foote Mineral Superfund Site resulted in environmental contamination, effecting

a taking without just compensation in contravention of the Fifth Amendment to the United States

Constitution. A description of the history of the site—including its contamination, remediation,

and chain of ownership—and procedural history of this case are provided in the court’s February

8, 2019 ruling and need not be repeated herein. See Whiteland Holdings, L.P. v. United States,

141 Fed. Cl. 702, 705-09 (2019).

As relevant to the instant motion, Frazer/Exton

completed the investigation, removal, and/or remediation of the

Site in 2011. . . . On September 11, 2017, pursuant to

Pennsylvania law, Whiteland executed an Environmental Covenant

in favor of Frazer/Exton. The [United States Environmental

Protection Agency (“EPA”)] approved the Environmental

Covenant nine days later. [T]he Environmental Covenant contains

. . . activity and use limitations[] which the then current owner of

the Property, and its tenants, agents, employees and other persons

under its control, shall abide by. . . .

Id. at 708 (citation and internal quotation marks omitted) (third brackets in original). In response

to defendant’s motion to dismiss, Whiteland and Frazer/Exton contended that their claim did not

accrue until they “‘could fully take account of their damages due to the consequences of

Defendant’s actions’ and that their damages ‘would have been merely speculative and not

quantifiable or present until the September 11, 2017 Environmental Covenant was executed.’”

Id. at 711 (brackets omitted). The court explained that Whiteland and Frazer/Exton’s claim

“accrued when they knew or should have known that the alleged contamination by the United

States effected a permanent taking, not when they became aware of the full extent of the

damage.” Id. (citation, internal quotation marks, and brackets omitted). The court concluded

that it “need not determine the specific date on which Frazer/Exton and Whiteland were

reasonably aware of the permanent nature of the alleged taking” because they “clearly had such

knowledge by no later than 2011, when Frazer/Exton completed the required remediation.” Id.

at 713. Because the original complaint was not filed until July 24, 2018, the court determined

that it lacked subject-matter jurisdiction over Whiteland and Frazer/Exton’s claim and dismissed

the complaint. Id.

In their present motion, Whiteland and Frazer/Exton aver that the court correctly set forth

the legal standards that apply to an environmental takings action, but committed “a manifest

error of law” in its determination of the accrual date of their claim. Mot. Recons. 1, ECF No. 14.

According to Whiteland and Frazer/Exton, such legal error justifies reconsideration of—or

alternatively, relief from—the court’s dismissal order. Id. At bottom, Whiteland and

Frazer/Exton argue that they “were unable to determine the extent of the taking, its permanency

or lack thereof, until the [EPA] imposed the land use restrictions contained in the 2017

Environmental Covenant.” Id. at 3. They explain that “the EPA’s institution of land use

restrictions, based upon the effectiveness of the remedial actions, . . . dictates the permanency of

the taking and determines the proper accrual date.” Id.

At the court’s direction, defendant filed a response to Whiteland and Frazer/Exton’s

motion,1 after which Whiteland and Frazer/Exton filed a reply. The parties did not request oral

argument, and the court deems it unnecessary. Whiteland and Frazer/Exton’s motion is therefore

ripe for adjudication.

1

On the cover page of its response, defendant did not list Whiteland as a plaintiff and

notes that it “will retain the original caption until this Court authorizes a change.” The court did

so on October 19, 2018. Order 1-2, Oct. 19, 2018, ECF No. 9.

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II. MOTION FOR RECONSIDERATION

A. Standard of Review

A motion for reconsideration is a request for “extraordinary” relief and is not an avenue

for a dissatisfied party to simply relitigate the case. Caldwell v. United States, 391 F.3d 1226,

1235 (Fed. Cir. 2004); Four Rivers Invs., Inc. v. United States, 78 Fed. Cl. 662, 664 (2007); Fru-

Con Constr. Corp. v. United States, 44 Fed. Cl. 298, 300 (1999), aff’d per curiam, 250 F.3d 762

(Fed. Cir. 2000) (unpublished table decision). Thus, such a motion does not allow a party to

raise arguments that it failed to raise previously or reassert arguments that have already been

considered. Four Rivers Invs., 78 Fed. Cl. at 664. Pursuant to RCFC 59(a)(1), the court “may

grant a motion for reconsideration when there has been an intervening change in the controlling

law, newly discovered evidence, or a need to correct clear factual or legal error or prevent

manifest injustice.” Biery v. United States, 818 F.3d 704, 711 (Fed. Cir. 2016) (quoting Young

v. United States, 94 Fed. Cl. 671, 674 (2010)). A decision on a motion for reconsideration is

within the discretion of the trial court. See Entergy Nuclear FitzPatrick, LLC v. United States,

711 F.3d 1382, 1386 (Fed. Cir. 2013) (explaining that a decision on a motion for reconsideration

is reviewed on appeal for abuse of discretion).

B. Analysis

Whiteland and Frazer/Exton do not allege that there has been an intervening change in

law since February 8, 2019, nor is the court aware of any. Further, they do not rely on any newly

discovered evidence. Rather, Whiteland and Frazer/Exton posit that the court must reconsider its

ruling to prevent manifest injustice. Specifically, they contend that the court erred in its analysis

of when their claim accrued due to misunderstanding their arguments.

The instant motion boils down to an attempt by Whiteland and Frazer/Exton to reargue

their original position pertaining to this court’s jurisdiction. To the extent that the motion raises

new arguments, there is no reason that those new arguments could not have been asserted

previously and thus they are waived. Accordingly, Whiteland and Frazer/Exton’s motion is

meritless. A motion for reconsideration “is not intended . . . to give an unhappy litigant an

additional chance to sway the court,” and a party cannot prevail “by raising an issue for the first

time on reconsideration” when that issue could have been litigated previously. Matthews v.

United States, 73 Fed. Cl. 524, 525 (2006) (internal quotation marks omitted) (collecting cases).

In any event, Whiteland and Frazer/Exton have not established that the court improperly

determined when their claim accrued. The “activity and use limitations” contained in the

September 11, 2017 Environmental Covenant are as follows:2

2

A complete copy of the 2017 Environmental Covenant, which is publicly available,

was attached as Exhibit 2 to Whiteland and Frazer/Exton’s response to defendant’s motion to

dismiss. See ECF No. 10-2.

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a. Future residential development is prohibited on the Quarry

Area.

b. No alterations of any kind in, to, or about any portion of the

Property inconsistent with this Environmental Covenant shall

be made, allowed or suffered to be made, unless the then

current owner has received prior written approval to do so from

EPA.

c. Any on-site excavations in the Quarry Area that would disturb

the integrity of the Cap System are prohibited, unless the then

current owner has received prior written approval to do so from

EPA.

d. The installation or building of any structures on the Quarry

Area is prohibited, unless the then current owner has received

prior written approval to do so from EPA.

e. Disturbing the vegetative growth that stabilizes the Cap System

is prohibited, unless the then current owner has received prior

written approval to do so from EPA.

f. The then current owner shall provide the Holder, EPA and the

Pennsylvania Department of Environmental Protection . . . with

sixty (60) days advance notice of any proposal to use or

perform any work on the Quarry Area.

Envtl. Covenant ¶ 5. The covenant also included a provision allowing a “passive solar field” to

be “installed on the Quarry Area” in accordance with the approval and notice requirements of the

activity and use limitations. Id. ¶ 4.

However, as defendant observes, “the use restrictions in the 2017 Environmental

Covenant were identified in the 2008 Consent Decree.” Def.’s Opp’n Mot. Recons. 1. Pursuant

to that decree, which was entered on July 25, 2008, in a federal district court action, Frazer/Exton

agreed to “refrain from using the Site . . . in any manner that would interfere with or adversely

affect the implementation, integrity, or protectiveness of the remedial measures to be

performed.”3 Consent Decree ¶ 26(b), United States v. Frazer Exton Dev. LP, No. 07-2666

(E.D. Pa. July 25, 2008). Frazer/Exton also agreed, as part of the consent decree, to certain use

restrictions that had been described in the EPA’s March 31, 2006 Record of Decision:

3

Defendant attached excerpts from the consent decree, which is publicly available, as

exhibits to its motion to dismiss and to its opposition to the pending motion for reconsideration.

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a prohibition of future residential development on capped areas of

the North and South Quarries at the Site, and other restrictions,

including [but] not limited to:

(i) provision of notice to current and future owners of the

Site regarding the impacted groundwater and soil

contamination and quarry fill left at the conclusion of the

remedial action,

(ii) prohibition of any activity that could potentially damage

or interfere with the selected remedy, and

(iii) establishment of a Groundwater Management Zone for

the downgradient areas impacted or potentially impacted

by contaminated groundwater . . . .

Id. Further, Frazer/Exton agreed to

execute and record . . . an easement, running with the land, that:

(i) grants a right of access for the purpose of conducting any

activity related to this Consent Decree . . . and (ii) grants the right

to enforce the land/water use restrictions listed in Paragraph 26(b)

of this Consent Decree . . . .

Id. ¶ 26(c).

The July 25, 2008 consent decree contemplated that Frazer/Exton might not own the

Foote Mineral Superfund Site in perpetuity:

If the Site, or any other property where access and/or land/water

use restrictions are needed to implement this Consent Decree, is

owned or controlled by persons other than [Frazer/Exton],

[Frazer/Exton] shall use best efforts . . . to secure from such

persons:

a. an agreement to provide access thereto for [Frazer/Exton],

as well as for the United States on behalf of EPA, and the

Commonwealth [of Pennsylvania], as well as their

representatives (including contractors), for the purpose of

conducting any activity related to this Consent Decree . . . ;

b. an agreement, enforceable by [Frazer/Exton] and the

United States, to refrain from using the Site, or such other

property, in any manner that would interfere with or

adversely affect the implementation, integrity, or

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protectiveness of the remedial measures to be performed

pursuant to this Consent Decree. Such restrictions include,

but are not limited to those restrictions described in

Paragraph 26; and

c. the execution and recordation . . . of an easement, running

with the land, that: (i) grants a right of access for the

purpose of conducting any activity related to this Consent

Decree . . . and (ii) grants the right to enforce the

land/water use restrictions listed in Paragraph 26(b) of this

Consent Decree . . . .

Id. ¶ 27. As relevant here, the 2017 Environmental Covenant—which was executed pursuant to

the Pennsylvania Uniform Environmental Covenants Act, and specifically referenced both the

record of decision and consent decree, Envtl. Covenant 1, ¶ 4—merely effectuated these

provisions. See 27 Pa. Stat. and Cons. Stat. Ann. § 6502, Uniform Law Cmt. 1 (West 2008)

(“[I]n a major environmental response project where the administrative process was conducted

by either a federal or state agency, the activity and use limitations would generally be identified

in the record of decision and then implemented in the environmental covenant pursuant to this

Act.”).

In short, because the September 11, 2017 Environmental Covenant contained the same

land use restrictions that were present in the July 25, 2008 consent decree, Whiteland and

Frazer/Exton’s position regarding when they became aware of the permanency of the alleged

taking is untenable. Therefore, there has been no manifest injustice because the court did not err

in concluding that Whiteland and Frazer/Exton’s claim accrued no later than 2011.

III. MOTION FOR RELIEF FROM FINAL JUDGMENT OR ORDER

As noted above, Whiteland and Frazer/Exton seek, as an alternative to reconsideration,

relief from the court’s dismissal order under RCFC 60(b).

A. Standard of Review

Pursuant to RCFC 60(b), the court “may relieve a party or its legal representative from a

final judgment, order, or proceeding for . . . (1) mistake, inadvertence, surprise, or excusable

neglect; . . . or (6) any other reason that justifies relief.” As with reconsideration, a decision on

an RCFC 60(b) motion for relief lies within the discretion of the trial court. See Progressive

Indus., Inc. v. United States, 888 F.3d 1248, 1255 (Fed. Cir. 2018) (explaining that a decision on

an RCFC 60(b) motion for relief is reviewed on appeal for abuse of discretion). A motion for

relief “is not a permissible substitute for an appeal.” Mendez v. United States, 135 Fed. Cl. 131,

133 (2017).

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B. Analysis

As explained above, the court did not err in determining that Whiteland and

Frazer/Exton’s claim accrued more than six years prior to the date on which Frazer/Exton

initiated the instant lawsuit. In other words, there has been no mistake. Further, Whiteland and

Frazer/Exton do not contend that there has been “inadvertence, surprise, or excusable neglect,”

or any of the circumstances listed in RCFC 60(b)(2) through (5). Therefore, the court’s

evaluation of their alternative motion for relief under RCFC 60(b) focuses on whether there is

“any other reason that justifies relief.”

Relief under RCFC 60(b)(6)—which has been described as a “‘catch-all’ provision”—is

available “only in ‘extraordinary circumstances.’” Cyios Corp. v. United States, 124 Fed. Cl.

107, 113 (2015) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863-64

(1988)). Examples of such circumstances include ex parte proceedings, “unusual combinations

of health and financial difficulties,” “gross negligence or severe misconduct by counsel,” and

fraud. Id. However, a court’s legal error does not rise to the level of extraordinary

circumstances sufficient to justify relief under RCFC 60(b)(6). Id. (citing Brown v. United

States, 80 F. App’x 676, 679 (Fed. Cir. 2003) (unpublished decision)). Because Whiteland and

Frazer/Exton do not allege any circumstances beyond their assertions regarding legal error in

support of their request for relief under RCFC 60(b)(6), their motion must be denied. Their

recourse, if any, is via appellate review.

IV. CONCLUSION

The court did not err in determining that Whiteland and Frazer/Exton’s claim accrued

more than six years prior to the date on which Frazer/Exton filed suit. There has been no

intervening change in the law, manifest injustice, clear factual or legal error, or other

extraordinary circumstances justifying reconsideration or relief from the court’s dismissal order.

Whiteland and Frazer/Exton’s motion is, in essence, an attempt to advance arguments that it

previously had the opportunity to assert and, in any event, are meritless.

Therefore, for the foregoing reasons, the court DENIES Whiteland and Frazer/Exton’s

motion for reconsideration and DENIES their alternative motion for relief from the court’s prior

order.

IT IS SO ORDERED.

s/ Margaret M. Sweeney

MARGARET M. SWEENEY

Chief Judge

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