Opposition — Hart v. United States

Oe

Supreme Court, 1

FILED

No. (8-1536 Eat

FWICHAEL RODAK, JRn CLERW? | |

Iu the Supreme Court of the United States re

OCTOBER TERM, 1978

ANDREW P. HART AND KIRBY LUMBER CORPORATION,

PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

CARL STRASS

ANNE S. ALMY

Attorneys

Department of Justice

Washington, D.C. 20530

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-1536

ANDREW P. HART AND KIRBY LUMBER CORPORATION,

PETITIONERS :

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 29-

37) is reported at 585 F.2d 1280. The findings of

fact and conclusions of law of the district court (Pet.

App. 39-49) are unreported.

JURISDICTION

The judgment of the court of appeals was entered

on December 11, 1978. A petition for rehearing was

denied on January 11, 1979 (Pet. App. 38). The

(1)

2

petition for a writ of certiorari was filed on April 9,

1979. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATUTE INVOLVED

28 U.S.C. 2409a(f) provides:

Any civil action under this section shall be

barred unless it is commenced within twelve

years of the date upon which it accrued. Such

action shall be deemed to have accrued on the

date the plaintiff or his predecessor in interest

knew or should have known of the claim of the

United States.

QUESTION PRESENTED

Whether the 12-year limitations period on actions

filed against the United States under the Quiet Title

Act, 28 U.S.C. 2409a(f), bars an action commenced

14 years after the plaintiff conveyed the land to the

United States.

STATEMENT

1. On March 28, 1961, the Kirby Lumber Corpora-

tion executed a general warranty deed conveying over

2,000 acres to the United States. The government

acquired the land for use in connection with the Sam

Rayburn Reservoir and Dam, an Army Corps of

Engineers project on the Angelina River in Texas.’

1The project was originally known as the McGee Bend

Reservoir and Dam project. It was authorized by the Act

of March 2, 1945, ch. 19, 59 Stat. 10. The name was changed

The deed to the land was obtained by the United

States through negotiated purchase rather than con-

demnation.

In 1958, the Corps of Engineers had announced

that land for this project would be acquired in fee

from the reservoir floor to approximately the 171-

foot mean sea level contour and that flowage ease-

ments would be obtained for higher land to approxi-

mately the 179-foot contour.’ As an exception to this

policy, however, the Corps proposed to acquire fee

title for land to approximately the 179-foot contour

in areas where erosion above the 171-foot contour

was predicted.

The Corps of Engineers determined that the land

covered by the Kirby deed was in such an erosion-

prone area. Accordingly, in November 1960, they

explained to Kirby that they desired to acquire the

land between the 171-foot and 179-foot contours. A

tract description document was furnished to Kirby

which detailed both the acreage to be acquired and

the metes and bounds of the proposed boundary line.

In June 1960, Kirby checked the proposed boundary

by the Act of September 11, 1968, Pub. L. No. 88-128, 77 Stat.

155.

2 This was based on the Joint Policy for Land Acquisition

on Reservoir Projects: Department of the Interior—Depart-

ment of the Army, 19 Fed. Reg. 381 (1954) (Eisenhower

Policy) (Pet. App. 60-63). Under this policy, fee title is

acquired for land expected to be inundated by flood waters on

an average of once every five years. For the Rayburn project,

the five year flood elevation was determined to be 171-feet.

The 179-foot contour was determined to be the elevation sub-

jected to inundation once every fifty years.

4

markers and, after some negotiation, accepted the

government appraisal as the purchase price.

The warranty deed conveying the land to the

United States repeated the metes and bounds from

the tract description. Neither the deed nor the sale

contract made any reference to a contour line or

elevation. There is no contention that the acreage

conveyed differed from the tract description or that

the boundary line created by the instruments is am-

biguous.

2. On February 28, 1973, Kirby conveyed approxi-

mately 13 acres adjacent to the project to petitioner

Hart. The deed contained the metes and bounds de-

scription of the boundary line from the prior con-

veyance to the United States. Thereafter, Hart had

the property surveyed and found that the deed line

in the conveyance to the United States diverged from

the 179-foot contour so that it enclosed land of higher

elevations. He sought an adjustment of this boundary

line, which was refused by the Corps on the ground

that the area was potentially subject to erosion.

This suit was then filed on March 28, 1975. The

complaint asked the court to reform the deed to the

United States by replacing the metes and bounds of

the conveyance with a description conveying lands

only to the 171-foot contour. In effect, petitioners

sought to divest the government of approximately 93

acres above the 171-foot contour line.

Following a bench trial, the district court rejected

the government’s motions to dismiss the action for

failure to state a claim, failure of subject matter

5

jurisdiction and failure to comply with the 12-year

statute of limitations for actions brought against the

United States to quiet title under 28 U.S.C. 2409a(f).

The court accepted petitioner’s claims and reformed

the deed to convey to the United States the land to the

171-foot contour in fee, and a flow easement for the

land to the 179-foot contour (Pet. App. 39-49).

The court of appeals reversed, holding that the 12-

year statute of limitations in 28 U.S.C. 2409a(f) had

expired before this suit was filed. The court remand-

ed the case to the district court with directions to dis-

miss (Pet. App. 29-37).

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or

of the other courts of appeals. Further review of the

decision in this case is therefore not warranted.

The Quiet Title Act grants consent to suit to ac-

tions involving disputed title to real property in which

the United States claims an interest. 28 U.S.C.

2409(a). The Act, however, limits the consent to

actions filed within 12 years of the date on which the

plaintiffs knew or should have known of the claim of

the United States. 28 U.S.C. 2409a(f). It is the

8 The statute provides that “[#]ny civil action under this sec-

tion shall be barred unless it is commenced within twelve years

of the date upon which it accrued.” 28 U.S.C. 2409a(f) (em-

phasis supplied). Prior to enactment, the limitations section

of the Quiet Title Act was the subject of extensive congres-

sional attention. The length of the limitations period, pro-

vision for retrospective application, and the definition of the

accrual of a cause of action were considered and redrafted

6

settled rule that “[s]uits against the United States

can be maintained only by permission, in the manner

prescribed and subject to the restrictions imposed.”

Munro v. United States, 303 U.S. 36, 41 (1938);

Reid v. United States, 211 U.S. 529, 538 (1909)

(Holmes, J.). Moreover, conditions or limitations to a

consent to suit are to be interpreted strictly in favor

of the sovereign.* McMahon v. United States, 342

U.S. 25, 27 (1951); see United States v. Testan, 424

U.S. 392, 399 (1976); United States v. Sherwood,

several times before the legislation was finalized. See S. Rep.

No. 92-575, 92d Cong., lst Sess. 2-3, 8 (1971) ; H.R. Rep. No.

92-1559, 92d Cong., 2d Sess. 5 (1972). See Hatter v. United

States, 402 F. Supp. 1192, 1194 (E.D. Cal. 1975). The 12-

year limitations period was designed to provide a fair oppor-

tunity to litigate title claims against the United States.

4 Petitioners contend (Pet. 10-17) that the enactment of

the 1976 amendments to the judicial review provisions of the

Administrative Procedure Act, 5 U.S.C. 701 et seq., reversed

the rule that waivers of sovereign immunity are to be strictly

construed. These amendments, however, were concerned with

actions subject to the judicial review provisions of the APA.

S. Rep. No. 94-996, 94th Cong., 2d Sess. 2 (1976) ; H.R. Rep.

No. 94-1656, 94th Cong., 2d Sess. 8 (1976). Congress intended

the waiver of sovereign immunity in the 1976 amendments

to have no effect on the requirements and limitations on pre-

viously enacted consents to suit. S. Rep. No. 94-996, supra,

at 12, 26; H.R. Rep. No. 94-1656, supra, at 12-18. Thus, the

amendment to Section 10(a) of the APA provides, “[n]othing

herein * * * confers authority to grant relief if any other

statute that grants consent to suit expressly or impliedly

forbids the relief which is sought.” Act of October 21, 1976,

Pub. L. No. 94-574, Section 1, 90 Stat. 2721, 5 U.S.C. 702.

Since the relief sought by petitioners is forbidden by the Quiet

Title Act, 28 U.S.C. 2409a(f), the 1976 amendments on which

petitioners rely are not relevant.

7

312 U.S. 584, 586 (1941). Because petitioner Kirby

did not file this action until 14 years after it con-

veyed the land to the United States, the court of ap-

peals correctly concluded that the claim is time-barred

by the statute.

Petitioners contend (Pet. 24-25), however, that the

claim of the United States is not based on the metes

and bounds established in the 1961 deed, but is based

instead on the 179-foot contour line around the dam

project. Petitioners claim that they could not reason-

ably have known that the 1961 deed conveyed land

above the 179-foot contour line before the land was

surveyed in 1973 and that, since this lawsuit was

filed only two years after that surv ,, it is not barred

by the 12-year statute of limitations in 28 U.S.C.

2409a(f). But it is obvious that the claim of the

United States to this land is based on the metes and

bounds description of the 1961 deed, which does not

incorporate or in any way refer to the 179-foot con-

tour line. The very purpose of employing a metes

and bounds description, rather than a contour line, in

such a conveyance is presumably to avoid subsequent

confusion and disputes as to the precise location of

the land claimed by the United States. Petitioners

cannot now urge that the unambiguous claim estab-

lished by the United States in the 1961 deed on the

basis of precise metes and bounds is, in fact, only a

shorthand reference to an ambiguous contour line that

was not incorporated into the deed. Cf. Grosz v.

Andrus, 556 F.2d 972, 974-975 (9th Cir. 1977).

8

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

CARL STRASS

ANNE S, ALMY

Attorneys

JUNE 1979

=U. 8. GOVERNMENT PRINTING orrice; 1979 294479 4i3