Petition for Writ of Certiorari — United States v. Beggerly

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Supreme Court. 1S

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97 731 ocl 27 97

No. OFFICE OF THe CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1997

UNITED STATES OF AMERICA, PETITIONER

CHRIS W. BEGGERLY, ETAL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

SETH P. WAXMAN

Acting Solicitor General

Lois J. SCHIFFER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

PAUL R.Q. WOLFSON

Assistant to the Solicitor

General

MARTIN W. MATZEN

WILLIAM B. LAZARUS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202)514-2217

QUESTIONS PRESENTED

1. Whether an “independent action” brought against

the United States to set aside a consent judgment entered

in a previous quiet title action brought by the United

States may be premised on “ancillary jurisdiction” deriv-

ing from the original quiet title action, and does not re-

quire an independent jurisdictional basis including a

waiver of sovereign immunity.

2. Whether the 12-year statute of limitations applicable

to actions against the United States under the Quiet Title

Act, 28 U.S.C. 2409a(g), was subject to equitable tolling.

3. Whether the court of appeals had appellate jurisdic-

tion to review the district court’s denial of respondents’

motion for summary judgment.

4. Whether the court of appeals erred in reopening the

consent judgment and upholding respondents’ claim of title

to lands in the State of Mississippi based on a 1781 land

grant by a Spanish governor who, as this Court held in

Onitted-States—v- United States v. Power’s Heirs, 52 U.S.

(11 How.) 570 (1851), had no authority to make such a

grant.

(I)

II TABLE OF CONTENTS

5 Page

PARTIES TO THE PROCEEDING 1———— |

Petitioner is the United States of America Petitioner Jurisdiction 8 ( ( ꝙ 8 ä ** *

Was defendant in the distriet court and ll in the Statutory pro volvedd . .

court of : al The i ts, Chris W. B ly, — — = — — —— w- bh

Clark M. B ly, Velma B. G 8 Reed. and Reasons for granting —2——— —

David Reed, were plaintiffs in the district court and —— ꝗ6üͥ . K —— —

CUES SOAS Gye. 1r——— ̃³ = 17a

1— ͤ—ꝓĩ.jññ 32a

7551 ̃⁵³cö 45a

1121 ̃ ! 47a

6 2 ⁵L— — 52a

1 ͤ¶— ——ö— 54a

11 . — 56a

8888 1 ——————————————— 61a

TABLE OF AUTHORITIES

Cases:

Akin v. PAFEC Ltd., 991 F.2d 1550 (11th Cir.

9 ——— 26

Andrade v. United States, 485 F.2d 660 (Ct. Cl.

1973), cert. denied, 419 U.S. 831 (1974) . 16-17

Arizona v. California, 460 U.S. 605 (1983) ............ 17-18

Block v. North Dakota, 461 U.S. 273 (1983) ......... 20, 21

Burke v. Ernest W. Hahn, Inc., 592 F.2d 542

EG — — 26

Cange v. Stolter & Co., 826 F.2d 581 (7th Cir.

8 ——ů————— 23

Crosby v. Mills, 413 F.2d 1273 (10th Cir. 1969) 17

Dugan v. Rank, 372 U.S. 609 (1983) ..... 20

(II)

Cases—Continued: Page

Fadem v. United States:

52 F.3d 202 (9th Cir. 1995), vacated and

remanded, 117 S. Ct. 1108 (1997) .................. 19

113 F.3d 167 (Oth Cir, 1997)... 20

Foy v. Schantz, Schatman & Aaronson, P.A.,

108 F.3d 1347 (Lith Cir. 1997) 26

Garcia v. Lee, 37 US. (12 Pet.) 511 (1838) ............ 2

Goodman v. McDonnell Douglas Corp., 606 F 2d

800 (8th Cir. 1979), cert. denied, 446 U.S. 913

(IBID ———————j—ç———ç—— 26

Hart v. United States, 585 F.2d 1280 (5th Cir.

1978), cert. denied, 442 U.S. 941 (1979) 23

Hunter, In re, 66 F.3d 1002 (9th Cir. 1995) ............. 16

Idaho v. Coeur d Alene Tribe of Idaho, 117 S. Ct.

1 m 20

Irwin v. Department of Veterans Affairs,

GBB UB, GD GERD cescsnsnessenesnnsessssesesssssessscccsssvccsages 22

Kokkonen v. Guardian Life Insurance Company of

America, 511 U.S. 375 (1994). 15, 18

Lampf, Pleva, Lipkind, Prupis & Petigrow v.

Gilbertson, 501 U.S. 350 (1991) 23, 24

Leo Sheep Co. v. United States, 440 U.S. 668

8 —ñ—ñů— 18

Milan Express Co. v. Western Surety Co.,

886 F. 2d 783 (6th Cir. 1989) . 26

Minnesota Co. v. National Co., 70 U.S. (3 Wall.)

1— . 18

Muse v. Arlington Hotel Co., 68 F. 637 (E. D.

Ark. 1895), error dismissed, 168 U.S. 430 (1897) ... 28

Nevada v. United States, 463 U.S. 110 (1983) ....... 17

Peacock v. Thomas, 116 S. Ct. 862 (1996) ............. 19

Swaback v. American Information Technologies

Corp., 103 F.3d 535 (7th Cir. 1998) . . 27

United States v. Brockamp, 117 S. Ct. 849

ee 20, 23

Cases—Continued: Page

United States v. California & Oregon Land Co.,

CE . 18

United States v. City and County of San Francisco,

r 20

United States v. Fadem, 117 S. Ct. 1108 (1997) .... 20

United States v. Louisiana, 363 U.S. 1 (1960) ...... 2,6

United States v. Mottaz, 476 U.S. 834 (1986) ....... 21

United States v. Porche, 53 U.S. (12 How.) 426

ee ~

United States v. Powers Heirs, 52 U.S. (11 How.)

— 6, 7, 8, 16, 28

United States v. Timmons, 672 F.2d 1373 (11th

. O n 16

—— — —⅜ 17

r eee 22

Constitution, statutes and rules:

U.S. Const. Art. IV, 5 8, Cl. 2 . . .

Act of Apr. 25, 1812, ch. 67, 2 Stat. 713

I ————T.

T»...

nne.

Act of Mar. 3, 1819, ch. 100, 3 Stat. 528:

Ye —

eS eae —ðÜ] —

Act of May 8, 1822, ch. 128, 3 Stat. 707

Act of May 26, 1824, ch. 178, 4 Stat. 5⁊222

(ned eA a AND

ow Sl A TT 3,

Act of May 24, 1828, ch. 98, 4 Stat. 29

Act of May 28, 1880, ch. 146, 4 Stat. 400

Act of June 17, 1844, ch. 95, 5 Stat. 6

de c ce te S

eee

Statutes and rules—Continued: Page

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

11— ò⁰ — 22

Quiet Title Act, 28 U.S.C. 240%ãʒ3 . 2,9

111 —L— 14, 15, 19, 23

Tucker Act:

RT y

En Ler 10

I —ę᷑?-᷑ 0

16 U.S.C. 459h ......... 2. 5

xx —ʃ 5

Fed. R Civ. P.:

CS —K————— 2, 9, 10, 11, 15, 17

—... * 17

Miscellaneous:

3 American State Papers, Public Lands (1834) .......

Exec. Order of Aug. 30, 1847 . . ......

Exec. Order of July 7, 1882 . . .

Exec. Order of Sept. 3, 1900

Exec. Order of Apr. 12, 1908

Exec. Order No. 4262 (July 3, 1925) .

Exec. Order No. 5562 (Feb. 20, 1931) ......................

Exec. Order No. 10,355, 17 Fed. Reg. 4831 (1952) ...

Public Land Order No. 1636, 23 Fed. Reg. 3388

ere Ee 4

10A C. Wright, A. Miller & M. Kane, Federal

Practice and Procdure (1983) 28

E K & & & & & DD

In the Supreme Court of the United States

OCTOBER TERM, 1997

No.

UNITED STATES OF AMERICA, PETITIONER

CHRIS W. BEGGERLY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Acting Solicitor General, on behalf of the United

States of America, respectfully petitions for a writ of cer-

tiorari to review the judgment of the United States Court

of Appeals for the Fifth Circuit in this case.

OPINIONS BELOW

The court of appeals’ substitute opinion rendered on

rehearing (App., infra, 1la-l6a), from which review is

sought, is reported at 114 F.3d 484. The initial decision of

the court of appeals (App., infra, 17a-3la) is unreported.

The district court’s memorandum order granting the gov-

ernment’s motion to dismiss and denying respondents’

motion for summary judgment (App., infra, 32a-44a) is un-

reported, as is the district court’s memorandum order

denying rehearing (App., infra, 47a-51a).

(1)

JURISDICTION

The court of appeals entered its initial judgment and

decision on May 29, 1997. The court of appeals thereafter

replaced that decision with a new decision on July 28, 1997,

and concurrently denied a petition for rehearing. App.

infra, 52a-58a. The jurisdiction of this Court is invoked

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

STATUTORY PROVISION AND RULE INVOLVED

Reprinted in an appendix to this petition (App., infra,

6la-63a) are the pertinent provisions of the Quiet Title

Act, 28 U.S.C. 2409a, and Federal Rule of Civil Procedure

60(b).

STATEMENT

l. a. This case arises out of a dispute between

respondents and the United States over ownership of lands

on Horn Island, Mississippi. Horn Island is one of five bar-

rier islands off the Mississippi coast in the Gulf of Mexico

(R. E. 32),' and is within the territory acquired in 1803 by

the United States in the Louisiana Purchase. United

States v. Louisiana, 363 U.S. 1, 80-81 (1960); Garcia v. Lee,

37 U.S. (12 Pet.) 511 (1838).

After the Louisiana Purchase, Congress established a

commission to ascertain the titles and claims to lands east

of the Pearl River in Mississippi, west of the Perdido

River in Alabama, and south of the 3lst degree of north

latitude, an area that includes Horn Island. Act of Apr. 25,

1812, ch. 67, 2 Stat. 713. The 1812 Act required every

person claiming lands in that area under French, British,

! Cites to R. E.“ refer to pages in respondents’ appendix of record

excerpts filed in the court of appeals. “Supp. R.E.” refers to the

supplemental appendix of record excerpts filed in the court of appeals

by the government. Cites to “R.” refer to pages in the official record

@ap

and Spanish grants to deliver evidence of the claim to the

Commissioner, who was directed to examine the claims; to

ascertain, inter alia, whether and when the lands were in-

habited or cultivated, and when and under what authority

they were surveyed; and to prepare a report on the claims

for Congress. 55 5, 7, 8, 2 Stat. 715, 716. In 1819, Congress

confirmed the claims that were recommended by the Com-

missioner and directed the issuance of certificates and pat-

ents for the confirmed claims. Act of Mar. 3, 1819, ch. 100,

§§ 1-2, 3 Stat. 528-530. No claims for lands on Horn Island

were recommended by the Commissioner or confirmed by

Congress; to the contrary, in 1816, the Commissioner spe-

cifically rejected a claim to Horn Island by the heirs of one

Catalina Boudreau. See p. 5, infra.” In 1844, Congress

permitted persons with claims to lands east of the Pearl

River, among others, “which might have been perfected

into a complete title” under a prior sovereign’s laws, to file

suit in federal district court to substantiate such claims,

with a right of direct appeal to this Court. Act of June 17,

1844, ch. 95, 5 Stat. 676; Act of May 26, 1824, ch. 173, § 1,

4 Stat. 52. Neither party to this case has suggested that

any lands on Horn Island were so claimed.

2 Congress twice permitted persons whose claims had not been

recommended for confirmation by the Commissioner to present addi-

tional supporting evidence (Act of Mar. 3, 1819, ch. 100, 56 6-7, 3 Stat.

530-531; Act of May 24, 1828, ch. 93, 4 Stat. 299), and it subsequently

confirmed several claims (Act of May 8, 1822, ch. 128, 3 Stat. 707; Act of

May 28, 1830, ch. 146, 4 Stat. 408). We are unaware of any claims

recommended or confirmed for lands on Horn Island.

8 The 1844 Act extended, to lands east of the Pearl River in

Mississippi, provisions of the 1824 Act that had allowed those claiming

lands in Arkansas and Missouri to petition the district court for

recognition of their claims. See Act of May 26, 1824, ch. 173, 4 Stat. 52.

Section 5 of the 1824 Act, and by incorporation the 1844 Act as well,

provided that “any claims to lands * * * within the purview of this

act, which shall not be brought by petition before the said courts,

Since the early 1800s, the United States has openly

acted as owner of Horn Island. The government’s first

official plat survey for Horn Island, conducted in 1824,

identified the island as public domain, as did a subsequent

official dependent resurvey conducted in 1846, and a sup-

plemental plat survey in 1907. R.E. 70. Dependent resur-

veys conducted in 1928* and 1979 showed that the United

States had issued no patents for any lands on Horn Island

before the 1907 survey, and that no patent had ever been

issued for the Horn Island lands claimed by respondents.

R.E. 71. In addition, since the mid-1800s, the United

States Government has issued a series of Executive

Orders and Public Land Orders providing for the public

use of lands at issue here and other lands on Horn Island,

including use for military and lighthouse purposes, a

chemical warfare station, a Coast Guard target range, and

a wildlife refuge.

b. Respondents’ predecessor in interest, Clark Beg-

gerly, Sr., purchased color of title to the lands at issue

here, as well as other lands, by quitclaim deed at a delin-

quent tax sale offered by Jackson County, Mississippi, in

1950. Mr. Beggerly, Sr., paid $51.20 for 626 acres described

as located on Horn Island; he and a friend also paid $31.25

within two years from the passing of this act, * * * shall be forever

barred, both at law and equity, and no other action, at common law, or

proceeding in equity, shall ever thereafter be sustained in any court

whatever, in relation to said claims.” 4 Stat. 54.

The resurvey conducted in 1928 reflected significant accretions

and accordingly redesignated the lot numbers within the sections.

R.E. 71.

See Exec. Order of Aug. 30, 1847; Exec. Order of July 7, 1852;

Exec. Order of Sept. 3, 1900; Exec. Order of Apr. 12, 1906; Exec. Order

No. 4262 (July 3, 1925); Exec. Order No. 5562 (Feb. 20, 1931); Exec.

Order No. 10,355, 17 Fed. Reg. 4831 (1952); Public Land Order No. 1636,

23 Fed. Reg. 3388 (1958).

for another 225 acres on the Island, of which he retained

103 acres upon later division. App., infra, 32a-33a.

In 1971, Congress created the Gulf Islands National

Seashore (GINS) for preservation purposes, and author-

ized the Secretary of the Interior to acquire several Gulf

Coast islands, including Horn Island. See 16 U.S.C. 459h,

459h-1. In 1972, the National Park Service began apprais-

ing lands within the boundaries of GINS, including some

lands on Horn Island, as an initial step toward acquisition

of properties. The 626-acre parcel claimed to be owned by

respondents was appraised for $156,000, and the 103-acre

parcel was appraised for $27,125. The Park Service offered

respondents slightly larger amounts than those appraised

values for the lands they claimed, conditioned on their de-

livery of clear title to the parcels. The government’s title

contractor, however, found no evidence that the United

States had ever issued any patents for the property

claimed by respondents. In the absence of clear title,

the government did not further pursue purchase of the

property from respondents. R.E. 68.°

In 1979, the United States filed suit against respondents

and nearly 200 other defendants to quiet title in the

United States to lands claimed by private persons on Horn

Island, Petit Bois Island, and Ship Island. United States of

America v. Adams, et al., Civil Action No. S79-0338(C) (D.

Miss.). For three years, the parties conducted research

6 Respondents originally maintained that their title derived from

federal patents that had been issued to Indians in 1840 and recorded in

the 1950s in the Jackson County Chancery Clerk’s Office by an attor-

ney acting for the 1950 tax-sale purchasers. See R. E. 75. Preliminary

research by the government’s title contractor suggested that respon-

dents’ title was derived from three patents issued to Indians in 1840,

but subsequent research revealed that those Indian patents had in fact

been issued for different lands in northeastern Mississippi, and that no

patents had ever been issued for Horn Island. R.E. 68; R. 199.

and discovery on their claims. During that litigation, the

United States filed a pleading that, among other things,

referred to a claim to Horn Island that had been rejected

by the land commission established by Congress in 1812,

and contended that that claim therefore provided no basis

for respondents’ claim to lands on Horn Island. See Mem.

in Supp. of Pl.’s Objections to Admis. of Defs.’ Exs. at

5-6 (filed 11/19/82); pp. 2-3, supra.

That pleading in the Adams case identified the source of

the information about the rejected claim as the report to

Congress on claims east of the Pearl River by Commis-

sioner William Crawford (reproduced in 3 American State

Papers, Public Lands 7 et seq. (1834)). Commissioner

Crawford’s report to Congress identified a claim by the

heirs of Catalina Boudreau’ to a grant purportedly issued

to her on August 1, 1781, by Bernardo de Galvez, then the

Governor of the Spanish province of Louisiana. Id. at 15

(item 51). Crawford’s report also explained that he had

rejected the Boudreaus’ and several other claims either

because they were “forfeited—most of them under the

Spanish law, for the want of inhabitation and cultivation;

and do not appear to be entitled to confirmation under

any law of the United States” (id. at 17); or because they

were “derived from officers who had no right to grant,

or, at most, not on so extensive a scale” (ibid.). In 1850,

this Court held, in addressing claims to lands on two

islands neighboring Horn Island, that, on August 1, 1781,

Bernardo de Galvez had no legal authority to issue grants

for lands east of the Pearl River. United States v. Power’s

Heirs, 52 U.S. (11 How.) 570, 579-580 (1851).°

’ Variously spelled Catherine, Catarina, and Catalina, and

Boudreau, Beaudreaux, Baudreau, Bodro, and Baudro.

8 As the Court noted in United States v. Louisiana, 363 U.S. at 80-

81, the lands in question were ceded by France to Great Britain in

1763, and were then made part of the British province of West

—

‘

In December 1982, respondents and the other defen-

dants to the United States’ quiet title suit executed a

“Stipulation and Settlement” (App., infra, 56a-60a) in

which they agreed to accept $400,000 as “full and just

compensation and in full satisfaction of any and all claims

of whatsoever nature * * * against the United States of

America by reason of the settlement of the action” (id. at

57a-58a), in return for entry of an attached consent

judgment. That consent judgment quieted title “in favor

of the United States with regard to all lands and interests

on Horn and Petit Bois Islands which defendants have or

may have claimed.” Id. at 54a. The judgment also perma-

nently enjoined the defendants (including respondents

herein) from asserting any dverse claim to the property.

Ibid. As a result of the settlement, respondents received

$208,175.87 of the $400,000 paid by the United States.

Supp. R.E. tab 3, at 4.

e. Despite the settlement of the quiet title action,

respondents continued to investigate their claim to the tax

sale parcels. According to an affidavit later filed in this

case, Edith Axelson, a researcher hired by respondents,

stated that in 1991 she had located in the National Ar-

chives documents relating to the “Boudreau Grant.” R.E.

126. Axelson attached to her affidavit a copy of materials

purportedly documenting an August 1, 1781, grant of Horn

Island to Catalina Boudreau by Bernardo de Galvez. R.E.

Florida. In 1781, Spain and Great Britain were at war, and the British

forces surrendered West Florida to de Galvez on May 9, 1781. The

Court concluded in Power’s Heirs that, although Spain held the rele-

vant lands under military occupation on August 1, 1781, there was no

evidence that Spanish law had been introduced into West Florida, or

that de Galvez had been given civil power to grant lands there.

De Galvez was then the Governor of the Spanish province of Louisiana,

but the Court stated that his civil authority did not extend to West

Florida. 52 U.S. (11 How.) at 579-580.

129-132. In August 1998, respondents hired Hans Baade, a

law professor at the University of Texas, to “evaluate and

determine the legal effect of * * * the ‘Boudreau Grant.’”

R.E. 134. Baade’s resultant legal “Memorandum on Title

to Horn Island” (R.E. 150-189) concluded that the grant to

Catalina Boudreau by de Galvez was valid. Baade, how-

ever, made no reference to this Court’s holding in Power’s

Heirs, 52 U.S. (11 How.) at 579-580, that de Galvez had

lacked legal authority to issue grants to lands east of the

Pearl River on August 1, 1781.° Nor did he address the

existence of any chain of title between Catalina Boudreau

and respondents.”

2. On June 1, 1994, respondents filed a complaint in

district court, requesting that the court set aside the 1982

settlement agreement and the consent judgment in the

United States’ quiet title action, and award them just

compensation for an “inverse condemnation” effected by

entry of that 1982 consent judgment. See R.E. 29-46 (com-

plaint). Relying on the “Boudreau Grant” (see R.E. 40),

the complaint asserted that the United States had fraudu-

lently represented federal ownership of the disputed prop-

erty on Horn Island (R.E. 42-44); that “mutual mistake of a

material fact” had caused respondents to agree to the 1982

settlement (R.E. 44); and that the entry of the 1982 con-

sent judgment constituted a taking of respondents’ prop-

Baade also did not address this Court’s decision in United States

v. Porche, 53 U.S. (12 How.) 426, 432 (1852), holding that, under the

1844 Act permitting certain claimants to lands east of the Pearl River

to present their claims to federal district court, any claims filed after

June 17, 1846, were jurisdictionally barred.

10 As noted above (page 5, note 6, supra), respondents originally

maintained that their title purchased at the tax sale in 1950 derived

from three patents issued to Indians in 1840, but those patents were in

fact issued for different lands. We are not aware of any connection

between the 1781 Boudreau Grant and the 1840 Indian patents.

erty without just compensation entitling them to a mone-

tary award by way of inverse condemnation (R.E. 45-46).

As relief, respondents sought to have the court set aside

the judgment in Adams and to award them “damages” of

not less than $14,500 per acre, plus interest since 1982.

R. E. 45.

In January 1995, the United States filed a motion to

dismiss the complaint for lack of jurisdietion. The govern-

ment contended that there was no statutory basis for ju-

risdietion, ineluding no waiver of sovereign immunity, for

respondents’ action to set aside the judgment in the quiet

title action. R. 52. Respondents in turn filed a motion for

summary judgment in March 1995, asserting that the

court had jurisdiction over their “independent action” to

set aside the consent judgment based on jurisdiction in the

initial quiet title action brought by the United States.

Resp. Mem. in Supp. of Mot. for Summ. J. 5, 16, 20-21. In

addition, respondents argued (id. at 23-24) that both the

Quiet Title Act (QTA), 28 U.S.C. 2409a, and the Tucker

Act, 28 U.S.C. 1346(a)(2) and 1491(a)(1), provided the dis-

trict court with jurisdiction over their claims. In July

1995, respondents filed a motion to amend their complaint

(R. 190-191) by adding the QTA and the Tucker Act as

jurisdictional bases, but they did not otherwise seek to

amend the complaint or the relief sought in the complaint;

they did not, for example, request that the district court

quiet title to the Horn Island lands in them.

The district court granted the government’s motion to

dismiss and denied respondents’ motion for summary judg-

ment. App., infra, 32a-44a. The court first observed that

respondents’ complaint was filed nearly 12 years after

entry of judgment in the United States’ quiet title action,

well after the one-year period allowed by Federal Rule of

Civil Procedure 60(b) for motions to set aside a final judg-

ment based on fraud. App., infra, 39a-4la. The court also

noted that, although respondents had relied on Rule 60(b)

in their complaint, they sought relief in their summary

judgment motion through an “independent action in eq-

uity”; it rejected that basis for relief as “substantively and

procedurally deficient,” and further concluded that the

action was untimely under the equitable doctrine of

laches. Id. at 40an.13. The court also ruled that respon-

dents had not met the legal prerequisite for seeking re-

scission of a settlement agreement, namely, returning the

moneys received in settlement and returning the parties

to the status quo ante; thus, the court concluded, respon-

dents must be “deemed to have ratified the settlement

agreement.” Jd. at 41a. The court further rejected re-

spondents’ inverse condemnation claim—that the entry of

the consent judgment in 1982 constituted a taking of their

property for which just compensation was due—on the

ground that the Court of Federal Claims had exclusive

jurisdiction over that claim under the Tucker Act, 28

U.S.C. 1491. App., infra, 42a-43a.

Finally, the court pointed out that a party seeking to set

aside a judgment on the basis of fraud faces a “stiff

standard of proof,” and it observed that respondents had

“wholly failed to discuss [their] allegations of fraud in

specific terms of the[] critical elements” for making out

such aclaim. App., infra, at 38a-39a n.9; see also id. at 39a-

40a & n.12 (court’s “careful{] review[] [of] the record”

establishes that respondents’ allegations of fraud are

devoid of evidentiary support). Rather, the court found,

lt he United States acted in good faith in the settlement

of [the Adams litigation].” Id. at 43a. The court remarked

that the United States “could have refused to pay for what

it already owned”—noting that respondents’ own attor-

neys had advised them at the time that they had no

valid claim te the disputed lands—and it characterized

the amount respondents had accepted in the Adams

settlement as a “‘six-figure’ windfall.” Id. at 43a-44a &

n.16. Having ruled that the case should be dismissed, the

court then denied respondents’ motion for summary

judgment, without addressing the merits of that motion.

Id. at 44a.

3. A divided panel of the court of appeals reversed. App.

infra, 17a-25a. The majority concluded that the district

court had erred in dismissing respondents’ action for lack

of jurisdiction (id. at 20a-2la), and it directed the district

court on remand to enter judgment quieting title in

respondents to Horn Island, and to fashion an appropriate

monetary remedy for respondents (id. at 25a). Judge

Garza dissented. Id. at 25a-31a.

4. The United States filed a petition for rehearing.

The panel, still divided, issued a “substitute” opinion on

rehearing (App., infra, la-16a), and concurrently issued an

order denying the petition for rehearing “[o)ther than as

reflected in the substituted opinion” (id. at 52a-53a).

a. The majority first concluded that the district court

had erred in dismissing the complaint. According to the

court, the time limits in Rule 60(b) for setting aside a

judgment based on alleged fraud doſ] not ‘limit the power

of a court to entertain an independent action’” to set aside

a judgment. App., infra, 4a. Moreover, the majority

stated, “an independent action filed in the same court that

rendered the original judgment is a continuation of the

original action for purposes of subject matter jurisdic-

tion.” Id. at 4a-5a. Therefore, the court concluded, neither

an independent basis for jurisdiction nor a waiver of

sovereign immunity is required “to bring an independent

tion in the same court as the original action.” Id. at 5a.

The majority then proceeded to address the merits of

respondents’ independent action to set aside the consent

judgment, and it ordered that relief. App., infra, 5a-8a.

“Crucial to that determination,” the majority stated, was

its conclusion that the district court had erred in failing

to recognize the validity of the de Galvez grant of Horn

Island to Catalina Boudreau in 1781. Id. at 6a. The court

acknowledged that the document found by Axelson in the

National Archives and proffered by respondents to support

their claim “is not the original grant,” but it concluded

that the proffered document was the only available copy,

“presumably” because a fire had destroyed the archives

where the original »rorld have been stored. Ibid. On that

basis, the court decide i that the English translation of the

purported grant was “admissible to prove its existence.”

Ibid.

The majority further acknowledged that a congres-

sionally established commission had rejected the applica-

ion by Boudreau’s heirs to Horn Island, but, it observed,

that commission was not given authority to adjudicate

title but was required to submit claims to Congress for

final action; therefore, “the land commissioner’s refusal to

accept the [Boudreaus’) application did not conclusively

determine that Horn Island belonged to the United

States.” App., infra, 6a-7a. But rather than remand the

issue of the validity of the Boudreau Grant to the district

court (which had not passed on the question), the court of

appeals itself addressed the issue, and concluded—based on

Professor Baade’s affidavit offered by respondents in

support of their motion for summary judgment, which the

district court had denied—that “the Boudreau Grant

vested complete and valid title in Catarina Boudreau. On

that record, therefore, we must conclude that the property

at issue herein remained privately owned after the

Louisiana Purchase and did not enter the public domain of

the United States” until the settlement of the quiet title

action. Id. at 8a."

Finally, the majority ruled on what it called respon-

dents’ Quiet Title Act claim” (App., infra, 9a-lla). Even

though respondents had only raised the QTA as an alter-

native basis for jurisdiction for their request for damages

and vacatur of the consent judgment and had not requested

that the district court quiet title in them, the majority

read respondents’ complaint as stating “alternative causes

of action” and held that the district court had jurisdiction

to adjudicate title under the TA. Id. at 9a. Moreover,

according to the majority, since “the United States has no

legitimate claim to the land, the validity of [respondents’]

title is a legal certainty,” and so title should be quieted in

their favor. Ibid. The court did not address the United

States’ open ownership of Horn Island since the Louisiana

Purchase, or the absence of any showing by respondents of

a chain of title between Boudreau and the 1950 tax sale by

which Clark Beggerly, Sr., acquired color of title to the

land.

The majority rejected the government’s argument that

any action by respondents under the QTA to adjudicate

title in lands on Horn Island was barred by the statute of

1 The majority stated that respondents’ “involuntary settlement”

of the Adams litigation, based on their “inability to prove their title”

derived from the Boudreau Grant, was “directly caused by the govern-

ment’s failure to produce the grant and its misrepresentation that no

private disposal” (by federal patent of the lands) had ever been made.

App., infra, 8a. The court did not, however, address the fact that the

government had brought the claim of Boudreau’s heirs to Horn Island,

and the 1816 land commission’s rejection of that claim, to the attention

of the court in the Adams litigation. See p. 6, supra. The court also

did not consider this Court’s Powers Heirs decision—holding that de

Galvez lacked authority to make grants east of the Pearl River—

which Professor Baade had not discussed in his affidavit, and which the

parties had not addressed in their briefs on appeal.

limitations, which requires that a quiet title action

against the United States be brought within 12 years of

the date on which the claim accrues (defined as the date on

which the plaintiff or his predecessor in interest knows

or should know of the United States’ claim to the land).

App., infra, 9a-10a; see 28 U.S.C. 2409a(g). The majority

acknowledged that respondents had brought their action

more than 12 years after they knew of the United States’

claim to the Horn Island lands, but, it ruled, the QTA’s

statute of limitations should be tolled in this case “on

equitable grounds.” App., infra, 10a. “On the record

before us,” the court stated, “the government may not

benefit from the limitations period, especially in light of

the diligence displayed by [respondents] in seeking the

truth and pursuing their rights, which resulted in their

discovering a grant that apparently not even custodians of

the public land records could or would locate.” bid.

Accordingly, the court tolled the QTA’s limitation period

for respondents’ benefit and remanded the case to the dis-

trict court to enter judgment quieting title in their favor,

subject to the United States’ election to retain the prop-

erty and pay respondents just compensation for it. Ibid.

b. Judge Garza dissented. App., infra, IIa-16a. He con-

cluded that the district court had properly dismissed the

case for lack of jurisdiction, because the government had

not waived its sovereign immunity to suit. Id. at lla. He

disagreed with the majority’s conclusion that an “inde-

pendent action” could be treated as a continuation of the

underlying suit with ancillary jurisdiction from the origi-

nal action, and he suggested that the panel’s jurisdictional

2 The Court noted that respondents knew of the United States’

claim to the land by 1976, when the United States ceased negotiating

with them over the purchase of the property. App., infra, 10a. It did

not address when respondents’ predecessors in interest knew or should

have known of the United States’ claim.

ruling was inconsistent with this Court’s decision in Kok-

konen v. Guardian Life Insurance Company of America,

511 U.S. 375 (1994), and contrary to decisions of the Ninth

and Eleventh Circuits. See App., infra, IIa, 12a n. I. Judge

Garza also suggested that the majority had erred in

reaching “the merits of [respondents’] cross motion for

summary judgment, the validity of the Boudreau Grant, or

the ownership of Horn Island,” since all of those questions

were “fraught with difficult fact questions that must be

decided by the district court, which alone has jurisdiction

to consider them.” Id. at 16a. Therefore, even if subject-

matter jurisdiction were present, Judge Garza would have

remanded the case to the district court for further

proceedings. Ibid.

REASONS FOR GRANTING THE PETITION

The court of appeals has made numerous significant

rulings which are in error and which have broad implica-

tions for the publicly owned lands of the United States.

First, the court concluded that a defendant to a civil action

brought by the United States and resolved by a final

judgment may bring an “independent action” to set aside

that final judgment based solely on the jurisdiction in the

initial action, well outside the time for setting aside a final

judgment permitted by Federal Rule of Civil Procedure

60(b), and without any independent statutory basis for

jurisdiction or waiver of sovereign immunity. That ruling

conflicts with the decisions of other courts of appeals and,

if left unreviewed, could provide a basis for reopening

judgments in innumerable actions brought by the United

States and long ago settled or litigated to final judgment.

Second, the court ruled that the Quiet Title Act’s 12-year

statut+ of limitations for quiet title actions against the

United States, 28 U.S.C. 2409a(g), is subject to equitable

tolling. That ruling is erroneous and has similarly impor-

tant implications for the stability of title to federal lands.

Third, the court ruled, on the merits, that the 1781 land

grant from which respondents’ claim ultimately derives is

valid; that decision is directly in conflict with a decision of

this Court, United States v. Power’s Heirs, 52 US. (11

How.) 570 (1851), and completely ignores other issues

concerning the validity of respondents’ title. Finally, the

court of appeals’ decision to reach the merits of respon-

dents’ motion for summary judgment on respondents’

appeal from the district court’s denial of that motion

presents an important question about the jurisdiction of

the courts of appeals, as to which there is a conflict among

the circuits. Certiorari is therefore warranted to review

the decision of the court of appeals in this case.

1. In reversing the dismissal of the action, the court of

appeals concluded that the district court had jurisdiction

over respondents’ “independent action” to set aside the

1982 consent judgment under its “ancillary jurisdiction,”

premised on the subject-matter jurisdiction for the origi-

nal suit, and that there was no need for respondents to

invoke an independent source of subject-matter jurisdic-

tion and waiver of sovereign immunity for their suit

against the United States. That decision conflicts with

decisions of other courts of appeals, which have held that

an independent action brought to set aside a judgment re-

quires an independent source of jurisdiction. See In re

Hunter, 66 F.3d 1002, 1005-1006 (9th Cir. 1995) (rejecting

ancillary jurisdiction for independent actions, and holding

that, absent diversity or other federal jurisdiction, court

lacked jurisdiction over independent action to set aside

settlement of bankruptcy case allegedly tainted by fraud);

United States v. Timmons, 672 F.2d 1373, 1378-1379 (11th

Cir. 1982) (similar; absent waiver of sovereign immunity,

court lacked jurisdiction over action to set aside judgment

in condemnation action brought by United States); An-

drade v. United States, 485 F.2d 660, 664 (Ct. Cl. 1973)

(similar; no jurisdiction to set aside settlement of Indian

Claims Commission case), cert. denied, 419 U.S. 831 (1974).

But see Weldon v. United States, 70 F.3d 1, 4 (2d Cir. 1995)

(holding that independent actions are ancillary to original

suit); Crosby v. Mills, 413 F.2d 1273, 1275 (10th Cir. 1969)

(same). That conflict among the courts of appeals on a

question of federal jurisdiction warrants resolution by

this Court.

The court of appeals’ decision would render largely ir-

relevant Federal Rule of Civil Procedure 60(b)(3), which

permits a district court to relieve a party from a judgment

based on a showing of fraud. Under Rule 60(b), such a

motion to set aside a judgment based on fraud, which is

truly ancillary to the original suit, must be made within

one year after entry of final judgment. Under the court of

appeals’ ruling, however, a party could invoke the ancillary

jurisdiction of the district court well outside that one-year

period and seek to overturn a judgment based on allega-

tions of fraud. The ruling therefore undermines the value

of finality of judgments reflected in Rule 60(b) and

generally in the law.”

That consequence is particularly troublesome in the

context of cases such as this one, involving title to real

property. This Court has repeatedly observed that “(t]he

policies advanced by the doctrine of res judicata perhaps

are at their zenith in cases concerning real property, land

and water.” Nevada v. United States, 463 U.S. 110, 129

n.10 (1983); see also Arizona v. California, 460 U.S. 605,

Rule 60(b) states that It his rule does not limit the power of a

court to entertain an independent action to relieve a party from a

judgment, order, or proceeding.” But while Rule 60(b) thus confirms

that an independent action may be brought outside the one-year period

prescribed for motions under Rule 60(b)(3), it does not suggest that

such an action may be brought without an independent source of

subject-matter jurisdiction.

620 (1983) (“Our reports are replete with reaffirmations

that questions affecting titles to land, once decided, should

no longer be considered open.”). As the Court explained in

1866:

Where questions arise which affect titles to land it

is of great importance to the public that when they are

once decided they should no longer be considered open.

Such decisions become rules of property, and many

titles may be injuriously affected by their change.

[Where courts vacillate and overrule their own

decisions * * * affecting the title to real property,

their decisions are retrospective and may affect titles

purchased on the faith of their stability. Doubtful

questions on subjects of this nature, when once de-

cided, should be considered no longer doubtful or sub-

ject to change.

Minnesota Co. v. National Co., 70 U.S. (8 Wall.) 332, 334

(1866). See also Leo Sheep Co. v. United States, 440 U.S.

668, 687 (1979) (“This Court has traditionally recognized

the special need for certainty and predictability where

land titles are concerned.”); United States v. California &

Oregon Land Co., 192 U.S. 355, 358-359 (1904).

The decision below is also in tension with this Court’s

decision in Kokkonen v. Guardian Life Insurance

Company of America, 511 U.S. 375 (1994), as Judge Garza

observed in his dissent below (App., infra, lla). In

Kokkonen, the Court held that a district court that had

dismissed a case upon settlement by the parties did not

have ancillary jurisdiction to enforce the parties’ settle-

ment agreement, which was not incorporated into the

order of dismissal. Emphasizing that “[fJederal courts are

courts of limited jurisdiction,” 511 U.S. at 377, the Court

noted that the suit to enforce the settlement agreement

was essentially a state-law suit for breach of contract,

part of the consideration for which was dismissal of the

earlier suit, and therefore required an independent source

of federal jurisdiction, such as diversity of citizenship.

See also Peacock v. Thomas, 116 S. Ct. 862, 867 (1996). So

too here, respondents’ independent action is in effect a suit

for monetary relief and an injunction based on allegations

of fraud, and to go forward it requires an independent

source of federal jurisdiction and waiver of sovereign

immunity, neither of which is present.“

2. The majority did not merely conclude that the

district court had jurisdiction to set aside the original

judgment quieting title in the United States; it further

held that the district court had jurisdiction to quiet title

in respondents’ favor under the Quiet Title Act (QTA),

even though respondents’ action was concededly filed more

than 12 years after they knew of the United States’ claim

to the disputed lands, and was therefore outside the QTA’s

12-year statute of limitations, 28 U.S.C. 2409a(g).” The

court held that the QTA’s 12-year limitation period was

subject to equitable tolling. App., infra, 10a. It also ruled

that the limitation period should be tolled in this case.

Ibid. The question whether the QTA’s limitation period is

subject to equitable tolling is one of considerable im-

portance to the management of federal lands, and the

court’s ruling on tolling is erroneous.”

14 Even if the district court had jurisdiction to entertain an inde-

pendent action, the court of appeals had no basis to order that the prior

consent judgment be set aside. See note 18, infra.

15 Section 2409a(g) provides: “Any civil action under this section,

except for an action brought by a State, 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.”

1% The Ninth Circuit has also held that the QTA’s statute of

limitations is subject to equitable tolling. Fadem v. United States, 52

F.3d 202 (1995), vacated and remanded, 117 S. Ct. 1103 (1997). In

The QA is the sole mechanism by which a party may

bring the United States into court to force an adjudication

of a title dispute involving land in which the United States

claims an interest. See Block v. North Dakota, 461 U.S.

273, 275-276 (1983). The QTA is, moreover, addressed to an

important aspect of the sovereignty of the United States,

the ownership of property, which is subject to the plenary

control of Congress. See U.S. Const. Art. IV, § 3, Cl. 2

(Congress has power “to dispose of and make all needful

Rules and Regulations respecting the Territory or other

Property belonging to the United States”); United States

v. City and County of San Francisco, 310 U.S. 16, 29-30

(1940). Suits under the QTA therefore implicate the core

of sovereign immunity. See Dugan v. Rank, 372 U.S. 609,

620 (1963) (a suit is against the sovereign if “the judgment

sought would expend itself on the public treasury or

domain”); cf. Idaho v. Coeur d’Alene Tribe of Idaho, 117 S.

Ct. 2028, 2040 (1997) (observing that Indian Tribe’s suit

against state officers was “the functional equivalent of a

quiet title action which implicates special sovereignty

interests“). Because of the special significance of publicly

owned lands for the sovereignty of the United States, it is

particularly important that title to those lands not be

clouded or unsettled, beyond the permissible reach of title

litigation that Congress has expressly authorized in the

QTA itself.

Fadem, the United States filed a petition for a writ of certiorari,

suggesting that the Court hold the petition pending United States v.

Brockamp, 117 S. Ct. 849 (1997), which presented a similar question

about equitable tolling of the statute of limitations for tax refund

claims. After the Court concluded in Brockamp that the tax refund

limitation period was not subject to equitable tolling, it vacated the

Ninth Circuit’s decision in Fadem and remanded the case for further

consideration in light of Breckamp. 117 S. Ct. 1103 (1997). On remand,

the Ninth Circuit reinstated its earlier decision. 113 F.3d 167 (1997).

The court’s holding that the QTA’s limitation period is

subject to equitable tolling, if left unreviewed, could have

serious consequences for the stability of title in federal

lands. When Congress was considering legislative pro-

posals that led ultimately to enactment of the QTA, a con-

cern was expressed that the United States would become

subject to stale claims to publicly owned lands, as to which

any defense would be difficult because of the passage of

time.” To avoid that problem, “Congress intended to fore-

close totally any suit on claims that accrued more than 12

years prior to the [1972] effective date of the QTA.” Block

v. North Dakota, 461 U. & at 286 n.23; see also United

States v. Mottaz, 476 U.S. 834, 843 (1986) (QTA’s “limita-

tions period is a central condition of the consent given by

the Act”). But if that limitation period is held subject to

tolling, then the government could be forced frequently to

defend its ownership of lands long believed to be defini-

tively settled. In this case, for example, the United States

has openly acted as owner of Horn Island since 1803,

and there had been no attempt on the part of a private

party to assert ownership to the Island as against the

United States since 1816, yet now the court of appeals has

directed that title be quieted in respondents.

* When Congress in 1972 considered waiving sovereign immunity

to quiet title actions, the Executive Branch urged that the Act be

applied prospectively only (i. e., not to claims that might have accrued

prior to enactment). See Block v. North Dakota, 461 U.S. at 283.

Ultimately, Congress and the Executive Branch agreed to a relatively

generous 12-year statute of limitations, but recognized that the 12-year

period would foreclose the revival of stale claims. Congress and the

President concluded that the 12-year statute of limitations was a rea-

sonable accommodation of private parties’ interests in the adjudication

of title disputes against the United States and the need to avoid the

serious disruption of federal programs that might be caused by law-

suits involving long-dormant land disputes.

The majority erroneously relied on this Court’s deci-

sion in Irin v. Department of Veterans Affairs, 498 U.S.

89 (1990), for the proposition that the statute of limitations

for actions brought under the QTA may be equitably

tolled. App., infra, 10a & n.19. In Jrwin, the Court held

that actions against a federal agency under Title VII of

the Civil Rights Act of 1964 are subject to equitable

tolling, and stated that “the same rebuttable presumption

of equitable tolling applicable to suits against private

defendants should also apply to suits against the United

States.” 498 U.S. at 95-96. Jrwin, however, involved a

federal cause of action that may be brought against private

parties as well as federal agencies, and well before Irwin

the Court had held that the limitation period for bringing

suit against a private employer was not jurisdictional but

was subject to equitable tolling. See Zipes v. Trans World

Airlines, Inc., 455 U.S. 385 (1982). The Court concluded in

Irwin that it would be anomalous to construe the identical

provision as strictly jurisdictional when applied to the

United States as a defendant, but not when applied to other

defendants.

No such anomaly arises from applying the statute of

limitations strictly in cases under the QTA, whereas

anomalies do arise from a holding that the limitation

period is subject to equitable tolling. First, the QTA does

not provide any mechanism for resolving disputes among

private parties as to land ownership; unlike the statute at

issue in Irwin, the TA has no application to defendants

other than the United States. Thus, the QTA does not

present the anomaly that would have existed in Jrwin had

the case been decided the other way—namely, permitting

equitable tolling in suits against private parties but

rejecting such tolling in suits based on the same statute

brought against the federal government.

Second, the text of the QTA strongly suggests that

Congress did not intend the statute of limitations to be

subject to equitable tolling. The Court spoke in Irwin of a

“rebuttable presumption” in favor of the availability of

equitable tolling in federal eases of action, but it

subsequently made clear that the courts should not apply

the doctrine of equitable tolling when to do so would be

“fundamentally inconsistent” with other aspects of a

statutory structure set in place by Congress, including

other aspects of the statute of limitations. See Lampf,

Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501

U.S. 350, 363 (1991); United States v. Brockamp, 117 S. Ct.

849, 852 (1997). In the context of the QTA, equitable toll-

ing is inconsistent with both the generous 12-year

limitation period and the statutory specification that that

period runs from the date on which the plaintiff or his

predecessor in interest “knew or should have known” of

the government’s claim. See 28 U.S.C. 2409a(g).

Nothing in the text or the legislative history of the

QTA suggests that Congress intended that equitable toll-

ing could be applied to extend still further this long limita-

tion period. The QTA’s 12-year statute of limitations al-

ready incorporates equitable considerations, see Hart v.

United States, 585 F.2d 1280, 1284-1285 (5th Cir. 1978),

cert. denied, 442 U.S. 941 (1979), and as one judge has

observed, IIliberal estoppel and tolling, tacked onto a long

period of limitations, is double counting.” Cange v. Stolter

& Co., 826 F.2d 581, 599 (7th Cir. 1987) (Easterbrook, J.,

concurring). Further, it is particularly difficult to square

equitable tolling with the fact that the QTA’s statute of

limitations provides that the cause of action accrues only

when the plaintiff or his predecessor in interest “knew or

should have known” of the claim of the United States.

Whereas some limitation periods run from the event

giving rise to the cause of action, whether or not the

plaintiff was aware of it (see, e.g., Lampf, 501 U.S. at 361-

362), that is not the case with the QTA. A plaintiff under

the QTA is under an obligation to file suit only once

he or his predecessor in interest actually knows of the

government’s claim, or reasonably should be aware of the

facts giving rise to that claim. Allegations of misconduct

by the government, such as concealment of material facts

about the government’s claim or misleading statements

about the nature of that claim, might be relevant to

determining when the plaintiff or his predecessor “knew

or should have known of the claim of the United States.”

But those allegations should not provide a basis for also

concluding that the limitation period was subject to

tolling, even where, as here, the plaintiff concededly did

know of the United States’ claim. If the court’s hold-

ing were accepted, then respondents’ allegations about

misrepresentations by the government apparently would

both set the date on which the limitation period began, and

also toll that period. Such a result would truly be “double

counting.“

18 Even if the 12-year limitation period under the QTA were subject

to equitable tolling in some circumstances, it was not subject to tolling

here. The district court, based on its “careful review of the record,”

found “little or no evidence to support [respondents’] allegations of

fraud, mutual mistake, and so forth,” and indeed found that It he

United States acted in good faith in the settlement of [the Adams

case.” App., infra, 43a. The court of appeals did not conclude that that

determination was clearly erroneous. It merely reached its own

conclusion that the government may not benefit from the limitation

period, in light of what it believed to be the “diligence” displayed by

respondents, which (it stated) “resulted in their discovering a grant

that apparently not even custodians of the public land records could or

would locate.” Id. at 10a. The court of appeals did not suggest,

however, that government attorneys or other personnel were aware of

or intentionally withheld information supporting the validity of a claim

by respondents through the Boudreau Grant. In fact, in the Adams

case, the government cited to the American State Papers where there

3. Even if the court of appeals’ conclusion that the

district court had subject-matter jurisdiction over this

case were correct, its decision to address the merits of the

land dispute itself, rather than remand the case to the

district court (which had denied respondents’ motion for

summary judgment) for further proceedings led it into

serious procedural and substantive error. Ordinarily, a

denial of summary judgment is interlocutory and hence

not appealable. Nonetheless, having reversed the district

court’s grant of the government’s motion to dismiss re-

spondents’ complaint, the court of appeals reviewed and

reversed the district court’s denial of summary judgment

in this case (reaching well beyond the relief sought even in

the complaint by quieting title for respondents to the

lands that they claimed on Horn Island). Its decision to

review the district court’s denial of summary judgment

presents an important issue of appellate jurisdiction as to

which there is a conflict among the courts of appeals:

whether, on appeal from a district court’s grant of a

dispositive motion terminating litigation in favor of a

defendant, a court of appeals may also review interlocutory

rulings that were not related to the basis for that final

judgment.

The Sixth, Eighth, Ninth, and Eleventh Circuits have

squarely held that a court of appeals may not, in those

circumstances, review interlocutory rulings that did not

was a reference to such a grant accompanied by an explanation why

the grant did not confer title. See p. 6, supra. Despite the govern-

ment’s reference to the issue in the Adams case, respondents did not

retain their expert to search the Archives until 1991, nine years after

the consent judgment was entered. That delay is scarcely consistent

with “diligence” on respondents’ part. For these same reasons that

there was no basis whatever for equitable tolling of the QTA'’s

limitation period (even if we assume, arguendo, that that period may

ever be tolled), there was no basis for setting aside the prior consent

judgment due to fraud or mutual mistake.

“produce” the final judgment. As the Eleventh Circuit

stated in Foy v. Schantz, Schatzman & Aaronson, P. A.,

108 F.3d 1347, 1350 (1997), Jolnly those prior non-final

orders that ‘produced the [final] judgment’ of the district

court are subject to [the court of appeals’) review on

appeal.” The court held there that it could not, after

reversing a final judgment dismissing a case for lack of

jurisdiction, also review the district court’s interlocutory

denial of a motion to dismiss for failure to state a claim.

Ibid.; see also Akin v. PAFEC Lid., 991 F.2d 1550, 1563

(11th Cir. 1993) (district court’s denial of plaintiff’s re-

quest for jury trial could not be reviewed after court of

appeals reversed grant of summary judgment to defendant,

because “the district court’s ruling on the jury demand

issue bears no relation to the final judgment which forms

the basis of our appellate jurisdiction”); accord Burke v.

Ernest W. Hahn, Inc., 592 F.2d 542, 546 (9th Cir. 1979)

(“The denial of a motion for summary judgment is not an

appealable order and this is so even where an action

is incorrectly dismissed by the district court for lack

of subject matter jurisdiction.”); Goodman v. McDonnell

Douglas Corp., 606 F.2d 800, 804 n.11 (8th Cir. 1979) (“The

denial of a motion for summary judgment is not an appeal-

able order, and the dismissal on the basis of laches does

not convert the denial of summary judgment into a ‘final

judgment’ for purposes of appeal.”), cert. denied, 446 U.S.

913 (1980); Milan Express Co. v. Western Surety Co., 886

F.2d 783, 785 n.1 (6th Cir. 1989) (on appeal from final

judgment dismissing case for lack of subject-matter

jurisdiction, court of appeals had no jurisdiction to review

denial of class certification).

Some courts have suggested that, when the facts are not

in contention and the dispute between the parties involves

only issues of law, then a court of appeals, after announc-

ing the proper rule of law and reversing a final judgment

based on the application of an erroneous legal rule by the

district court, may direct entry of summary judgment for

the appellant. See, e.g., Swaback v. American Informa-

tion Technologies Corp., 103 F.3d 535, 543-544 & n.24 (7th

Cir. 1996). This, however, is manifestly not such a case.

Here, in light of its conclusion that the judgment in

favor of the United States in Adams should not be

reopened, and its resulting dismissal of the action, the

district court denied respondents’ motion for summary

judgment without reaching the merits of their claim of

title. See App., infra, 44a. The district court therefore

had no occasion to resolve any issues of law or fact

concerning respondents’ motion for summary judgment.

The impropriety of the court of appeals’ decision in

reaching and resolving the merits of that claim and order-

ing that title be awarded to respondents is made all the

more apparent by several errors underlying the court’s

conclusion that “the validity of [respondents’) title is a

legal certainty.” Id. at 9a.

The court’s decision to quiet title in favor of respon-

dents necessarily rested on the incorrect premise that

Professor Baade’s affidavit had conclusively resolved all

questions regarding both the legal validity of the

Boudreau Grant and the chain of title between the

Boudreaus and respondents. In fact, the Baade affidavit did

not even purport to address the chain of title; even if the

Boudreau Grant were valid, that would not necessarily

mean that respondents have good title to the lands in

question. And as to the Boudreau Grant, while the court

of appeals relied on Professor Baade’s legal “Memorandum

on Title to Horn Island” (R.E. 150-189), which stated a

legal conclusion that Bernardo de Galvez had authority in

August 1781 to grant Horn Island to Catalina Boudreau

(R. E. 157,“ that conclusion is in direct conflict with this

Court’s determination in Power’s Heirs, 52 U.S. (11 How.)

at 579-580, that de Galvez lacked legal authority to issue

grants to lands east of the Pearl River on August 1, 1781,

the very day he is said to have issued the grant to Catalina

Boudreau for Horn Island, which is east of the Pearl

River. And even if de Galvez had authority to issue the

Boudreau Grant, respondents would still have to establish

that the Boudreau Grant was consistent with Spanish law

at the time:“ that Catalina Boudreau’s heirs had not

forfeited their claim by failing to cultivate or inhabit

the land; and that the United States’ open and undisturbed

claim to the lands as public domain had not effected an

9 Furthermore, although the court of appeals stated that Professor

Baade’s conclusions about the validity of the Boudreau Grant were

uncontroverted on the summary judgment record (App., infra, Sa),

Professor Baade himself stated that he had performed an evaluation

and determination of “the legal effect of * * * the ‘Boudreau Grant

(R.E. 134 (emphasis added). While Federal Rule of Civil Procedure

56(e) permits a court to rely on unchallenged “facts as would be

admissible in evidence,” it does not permit a court to give dispositive

weight to legal conclusions in an affidavit. Rule 56(e) requires that

affidavits in support of motions for summary judgment “shall be made

on personal knowledge,” and also requires an affirmative showing that

the affiant “is competent to testify to the matters stated therein.”

Legal conclusions, therefore, are not within the scope of affidavits

offered under Rule 56. See 10A C. Wright, A. Miller & M. Kane,

Federal Practice and Procedure § 2738, at 486-489 (1983).

At the time of the alleged grant of Horn Island to Catalina

Boudreau, Spanish grants in the province of Louisiana were governed

by the regulations of Governor O’Reilly, dated February 18, 1770. See

Power's Heirs, 52 U.S. (11 How.) at 576; see generally Muse v.

Arlington Hotel Co., 68 F. 637 (E.D. Ark. 1895), error dismissed, 168

U.S. 430 (1897). Those regulations included formal requirements of “an

actual survey on the ground before the title of the crown was divested,

followed by an actual putting the grantee in pedal possession.” 68 F.

at 640.

adverse possession against Catalina Boudreau’s succes-

sors in interest.

All those questions were left unresolved by the parties’

mutual agreement to the entry of a consent judgment in

the earlier suit, and none of them was passed on by the

district court in this litigation. Moreover, the court of

appeals’ ruling that de Galvez’ grant to Catalina Boudreau

was valid mzy cloud the United States’ title in other

parcels of and in the Gulf Islands National Seashore—

including .cvse parcels in which the other defendants to

the original quiet title action brought by the United

States claimed an interest—along with other lands east of

the Pearl River, including those at issue in the Power’s

Heirs case. At a minimum, therefore, even if the court of

appeals had appellate jurisdiction to review the district

court’s disposition of respondent’s motion for summary

judgment based on the Boudreau Grant, it should not itself

have passed on the validity of respondents’ claim, but

should have remanded the case to the district court for

further proceedings.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

OCTOBER 1997

SETH P. WAXMAN

Lois J. SCHIFFER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

PAUL R.Q. WOLFSON

Assistant to the Solicitor

General

MARTIN W. MATZEN

WILLIAM B. LAZARUS

Attorneys

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-60625

CuRIs W. BEGGERLY; JAMES R. BEGGERLY;

CLARK M. BEGGERLY; VELMA B. GARNER;

SUZANNE REED; DAVID REED,

PLAINTIFFS-APPELLANTS,

UNITED STATES OF AMERICA, DEFENDANT-APPELLEE

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

Filed: May 29, 1997

[As Corrected on Rehearing and Filed July 28, 1997]

Before: PoLitz, Chief Judge, EmiLio M. Garza and

STEWART, Circuit Judges.

PoLrrz, Chief Judge:

The panel substitutes the following for its opinion

previously issued:

The Beggerlys appeal the district court’s order

granting the motion to dismiss by the United States

and denying the Beggerlys’ cross-motion for sum-

mary judgment in which they sought to vacate a

consent judgment under which the United States

acquired title to property previously held by the

(la)

Beggerlys. Concluding that the Beggerlys are enti-

tled to the relief sought, we reverse, and remand.

BACKGROUND

On April 3, 1950 Clark M. Beggerly, Sr., on behalf of

his family, bought a portion of Horn Island, offshore

in the Gulf of Mexico, at a tax sale in Jackson, Missis-

sippi. On January 8, 1971 Congress enacted legisla-

tion authorizing the Department of Interior to estab-

lish a federal park on lands that included Horn Is-

land.' In 1972 the National Park Service began nego-

tiating with the Beggerlys for the purchase of their

property on Horn Island. In October 1975 the Begger-

lys entered into a contract to sell the land to the

government for $156,500. Subsequently the govern-

ment canceled the contract contending that because it

had never issued a land patent, it was the title owner

of Horn Island.

In 1979 the government brought a quiet title action

in the Southern District of Mississippi against the

Beggerlys and other defendants. During discovery

the Beggerlys sought proof of their title, and govern-

ment officials ostensibly conducted a thorough search

of the public land records. The government then for-

mally represented to the Beggerlys and the district

court that no part of Horn Island had ever been

granted to a private landowner and, as a result of

these representations, in 1982 the government per-

suaded the Beggerlys to accept a settlement agree-

ment it proposed. The district court entered judg-

ment based upon that agreement; the Beggerlys

16 U.S.C. § 459h.

received $208,175.87 and title was quieted in favor of

the United States.’

Their disappointment with the results of the set-

tlement led the Beggerlys to mount an exhaustive

search for a land patent to support their claim of title.

They wrote letters to public officials, made Freedom

of Information Act requests, and searched land rec-

ords in Alabama, Mississippi, Louisiana, and Wash-

ington, D.C. Finally, in 1991 the Beggerlys hired a

genealogical record specialist who conducted re-

search in the National Archives and discovered the

Boudreau Grant which supported the Beggerlys’

claim of title. Government officials reportedly had

searched the National Archives during the quiet title

suit but had not discovered this document and thereaf-

ter erroneously advised the court and the Beggerlys

that Horn Island had never been privately disposed.

The Beggerlys contacted the Bureau of Land Man-

agement requesting the issuance of a land patent

for Horn Island. The BLM summarily denied their

request.

The Beggerlys then filed the instant action on June

i, 1994 seeking to set aside the consent judgment and

to recover just compensation. The government moved

to dismiss the complaint, invoking Fed.R.Civ.P.

12(b)(6) and 12(b)(1). The Beggerlys filed a cross-

motion for summary judgment and filed an amended

motion to add the Tucker Act“ and the Quiet Title

Act* as jurisdictional bases. The district court

granted the government’s motion to dismiss and

2 United States v. Adams, No. S79-0338(R) (S.D. Miss. Dec.

3, 1982).

3 28 U.S.C. § § 1346, 1491.

4 28 U.S.C. § 2409a.

denied the Beggerlys’ eross- notion for summary judg-

ment and motion to amend. The Beggerlys timely

appealed.

ANALYSIS

1. Sovereign Immunity

The government contends that sovereign immunity

bars the Beggerlys from proceeding with an inde-

pendent action in equity. The government relies on

Zegura v. United States“ in which we held that

sovereign immunity barred a bill of review brought

to vacate a prior judgment obtained by the United

States. The Eleventh Circuit viewed Zegura as con-

trolling authority for the proposition that an inde-

pendent action could not be brought against the

government absent a waiver of sovereign immunity.“

We are not so persuaded and do not find Zegura as

controlling herein. Zegura dealt only with a bill

of review, which is a type of equitable action that

has been replaced by the motions enumerated in

Fed.R.Civ.P. 60(b). Although an independent action in

equity is similar to a bill of review and its modern

successors—the Rule 60(b) motions—it is nonethe-

less a different action. Rule 60(b) makes the distinc-

tion clear, stating that it does not “limit the power

of a court to entertain an independent action.” We

therefore conclude that Zegura does not control in

the independent action context.

We have held that an independent action filed in the

same court that rendered the original judgment is a

continuation of the original action for purposes of

5 104 F.2d 34 (5th Cir.), cert. denied, 308 U.S. 586 (1939).

United States v. Timmons, 672 F.2d 1373 (11th Cir. 1982).

subject matter jurisdiction.’ It would be anomalous to

torpedo a party bringing the independent action with

a plea of sovereign immunity when the action is in

reality a continuation of the original lawsuit in which

jurisdiction was not an issue. To allow the govern-

ment to use sovereign immunity as a shield where it

previously has invoked the court’s jurisdiction and

prevailed in an action based upon its misrepresenta-

tions, negligence, or mistake would do unacceptable

violence to our basic notions of justice. We therefore

agree with our colleagues in the Second Circuit and

now conclude and hold that governmental consent is

not required to bring an independent action in the

same court as the original action.“

2. The Independent Action

The elements of an independent action are:

(1) a judgment which ought not, in equity and good

conscience, to be enforced; (2) a good defense to the

alleged cause of action on which the judgment is

founded; (3) fraud, accident, or mistake which pre-

vented the defendant in the judgment from obtain-

ing the benefit of his defense; (4) the absence of

fault or negligence on the part of the defendant;

and (5) the absence of any adequate remedy at law.”

The Beggerlys have satisfied these elements. We

now hold that the district court erred as a matter of

law in denying the Beggerlys’ action to vacate the

West Virginia Oil & Gas Co. v. George E. Breece Lumber

Co., 213 F.2d 702 (5th Cir. 1954).

8 Weldon v. United States, 70 F.3d 1 (2d Cir. 1995).

Bankers Mortgage Co. v. United States, 423 F.2d 73 (5th

Cir.) (quoting National Sur. Co. v. State Bank, 120 F. 593, 599

(8th Cir.1903)), cert. denied, 90 S.Ct. 2242 (1970).

consent judgment. Crucial to that determination is

our conclusion that the district court erred in failing

to recognize the validity of the Boudreau Grant. That

document is an English translation of a 1781 Spanish

land grant in which the Governor General of Spanish

Louisiana conveyed Horn Island to Catarina

Boudreau. Although the available document is not the

original grant, it is the only copy available, presuma-

bly because a fire destroyed the Spanish West Florida

archives where the original Spanish version would

have been stored. The Supreme Court has held that a

certified translation of a Spanish land grant may be

used to prove the existence of a grant where the

original cannot be found or has been destroyed.” We

therefore find and conclude that the English transla-

tion is the best evidence of the original grant and is

admissible to prove its existence.

The government contended at oral argument that

the Boudreau Grant was merely an application for a

land patent. In the early 19th century Congress es-

tablished land commissions to organize the private

claims of landowners, in what are now the states of

Louisiana, Mississippi, Alabama, and Florida, who had

acquired their property from England, France, or

Spain. Heirs of Catarina Boudreau presented the

Boudreau Grant to the land commissioner for claims

east of the Pearl River. It was not accepted. The land

commissioners were responsible for ascertaining

titles and claims but did not have the authority to

adjudicate title. The controlling statute required

that the commissioners submit claims to Congress

1% United States v. Delespine’s Heirs, 37 U.S. (12 Pet.) 654

(1838).

for final action.“ We must therefore conclude that

the land commissioner’s refusal to accept the applica-

tion did not conclusively determine that Horn Island

belonged to the United States.

It is abundantly clear that the land commissioners

did not have the authority to confiscate property

rightfully owned by private individuals. It is well-

settled that, absent a specific congressional act, land

validly granted by a foreign nation remained privately

owned after the United States acquired political

control of the subject area. Chief Justice John

Marshall taught:

The modern usage of nations, which has become

law, would be violated; that sense of justice and of

right which is acknowledged and felt by the whole

civilized world would be outraged, if private

property should be generally confiscated, and

private rights annulled. The people change their

allegiance; their relation to their ancient sover-

eign is dissolved; but their relations to each other,

and their rights of property, remain undisturbed.”

Articles II and III of the treaty consummating the

Louisiana Purchase, under which the United States

acquired property south of the 3lst parallel where

Horn Island is located,” expressly protected the

rights of private landowners. We consider it beyond

serious debate that if the Boudreau Grant was a valid

1 Act of April 25, 1812, 2 Stat. 713; see generally United

States v. Percheman, 32 U.S. (7 Pet.) 51 (1833).

2 Percheman at 86-87.

3 United States v. Louisiana, 363 U.S. 1 (1960); Foster v.

Neilson, 27 U.S. (2 Pet.) 253 (1829), overruled on other grounds

by Percheman.

land grant under the Spanish law of 1781, then Horn

Island remained private property after the Louisiana

Purchase. If, however, the grant was incomplete or

invalid under Spanish law, then the land commis-

sioner was justified in his rejection. We inquire,

therefore, as to the validity of the Boudreau Grant

under Spanish law at the time it was made. The

summary judgment record contains an affidavit by

Professor Hans Baade, offered by the Beggerlys as

evidence that the Boudreau Grant was complete and

valid under the Spanish law of 1781. On the record be-

fore us the Boudreau Grant vested complete and valid

title in Catarina Boudreau. On that record, therefore,

we must conclude that the property at issue herein

remained privately owned after the Louisiana Pur-

chase and did not enter the public domain of the

United States until the misrepresentation-based con-

sent judgment of 1982.

The government possessed a document that was

vital to the Beggerlys’ claim of title to the land they

had acquired on Horn Island. Notwithstanding, it

represented to the Beggerlys and to the district court

that no evidence existed that Horn Island had ever

been privately owned. This representation precipi-

tated the Beggerlys’ involuntary settlement of the

government’s lawsuit. Their inability to prove their

title was directly caused by the government’s failure

to produce the grant and its misrepresentation that

no private disposal had ever been made. Equity per-

mits us to correct injustice in extraordinary and

unusual circumstances such as are here presented.

We exercise that authority and as to the Beggerlys

set aside the challenged consent judgment as null and

void ab initio.”

3. Quiet Title Act Claim

The Beggerlys filed a motion to amend their

complaint to claim relief under the Quiet Title and

Tucker Acts. The district court denied that motion.

We read the Beggerlys’ complaint and motion for

summary judgment as stating alternative causes of

action. Although the district court did not have ju-

risdiction over an inverse condemnation action under

the Tucker Act,” it did have jurisdiction to adjudicate

title under the Quiet Title Act. We conclude that the

district court abused its discretion and should have

allowed the Beggerlys to amend their complaint be-

cause it he requested amendment would have done

no more than state an alternative jurisdictional basis

for recovery upon the facts previously alleged.“

The record reflects that the Beggerlys legally

acquired a part of Horn Island in a tax sale. Because

we have set aside the earlier judgment as to the

Beggerlys and have found that the United States has

no legitimate claim to the land, the validity of the

Beggerlys’ title is a legal certainty. The government

maintains, however, that a claim under the Quiet

Title Act is barred unless it is commenced within 12

years of the date on which it accrued.” A claim is

deemed to accrue on the date the plaintiff knows or

4 We note that there are no fixed time limitations on

bringing an independent action in equity. In re West Texas

Mktg. Corp., 12 F.3d 497 (5th Cir. 1994).

5 See 28 U.S.C. §§ 1346, 1491 (vesting exclusive jurisdiction

in the Federal Court of Claims for claims exceeding $10,000).

6 Miller v. Stanmore, 636 F.2d 986, 990 (5th Cir. 1981).

28 U.S.C. § 2409a(g).

10a

should have known about the claim of the United

States.” The Beggerlys knew about the claim at the

earliest in 1976 when the government ceased contract

negotiations with them for the purchase of their Horn

Island property. More than 12 years passed before the

Beggerlys commenced the current action; however, a

statute of limitations may be tolled on equitable

grounds. “Equitable tolling applies principally where

the plaintiff is actively misled by the defendant about

the cause of action or is prevented in some extraordi-

nary way from asserting his rights.”” On the record

before us the government may not benefit from the

limitations period, especially in light of the diligence

displayed by the Beggerlys in seeking the truth and

pursuing their rights, which resulted in their discov-

ering a grant that apparently not even custodians of

the public land records could or would locate. We

conclude that the limitations period was tolled from

the time the Beggerlys began searching for evidence

of a private disposal during the original quiet action

until they discovered the Boudreau Grant and, thus,

that their action manifestly was filed within the

12-year limitations period.

We remand to the district court so that it may en-

ter judgment quieting title in favor of the Beggerlys.

Under 28 U.S.C. § 2409a(b) the United States has

the option of delivering possession of the 729 acres

claimed by the Beggerlys or it may elect to retain

possession thereof and pay the Beggerlys just com-

8 Id.

Rashidi v. American President Lines, 96 F.3d 124, 128

(5th Cir. 1996). Equitable tolling may be applied against the

United States. Irwin v. Department of Veterans Affairs, 111

S.Ct. 453 (1990).

lla

pensation for same. The district court is to take into

account the compensation of $208,175.87 received by

the Beggerlys in the 1982 settlement. The judgment

of the district court is REVERSED and judgment is

RENDERED in favor of the Beggerlys and this

cause is REMANDED for further proceedings con-

sistent herewith.

EMILio M. GARZA, Circuit Judge, dissenting:

I agree with much of today’s majority opinion. |

agree with the majority that the complaint is not a

motion under Fed. R. Civ. P. 60(b)(1)-(6), and that it

should more properly be considered an independent

action in equity, since Beggerly explicitly invoked

the equitable jurisdiction of the district court in his

complaint. I agree with the majority that the district

court erred in dismissing the action as untimely,

because there is no fixed limitations period for such

equitable actions. And finally, I agree with the major-

ity that the equities of this case favor Beggerly and

his family. However, because we do not have jurisdic-

tion to provide such relief, I must part company with

the majority. As judges, we have equitable discretion

to do justice within the limits of the law, but we can

go no further. In this case, the government has not

waived its sovereign immunity to suit, which bars our

jurisdiction to provide relief.

As an initial matter, I would not treat an independ-

ent action in equity as a “continuation” of the under-

lying suit with ancillary jurisdiction from the origi-

nal action. In a similar context, the Supreme Court

appears to have foreclosed the notion of ancillary

jurisdiction in cases such as this one, involving a

challenge to a settlement agreement in federal court.

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

12a

375, 380, 114 8. Ct. 1673, 1676, 128 L. Ed. 2d 391 (1994)

(“No case of ours asserts, nor do we think the concept

of limited federal jurisdiction permits us to assert, ~

ancillary jurisdiction over any agreement that has as

part of its consideration the dismissal of a case before

a federal court.”).

Furthermore, the Fifth Circuit has long held that

independent actions must have jurisdiction inde-

pendent of the judgments they challenge. Bankers

Mortgage Trust Co. v. United States, 423 F.2d 73, 78

(5th Cir.), cert. denied, 399 U.S. 927, 90 S. Ct. 2242, 26

L. Ed. 2d 793 (1970); Jones v. Watts, 142 F.2d 575 (5th

Cir.), cert. denied, 323 U.S. 787, 65 S. Ct. 310, 89 L.

Ed. 628 (1944); Zegura v. United States, 104 F.2d 34,

35 (5th Cir.), cert. denied, 308 U.S. 586, 60 S. Ct. 109,

84 L. Ed. 490 (1939).

West Virginia Oil & Gas v. George E. Breece

Lumber, cited by the majority, appears to have cre-

ated an exception to this general rule. West Virginia

I recognize that there is a conflict among the other cir-

cuits regarding whether independent actions require independ-

ent jurisdiction. Compare Weldon v. United States, 70 F.3d 1,

4 (2d Cir. 1995) (holding that independent actions are ancillary

to original suit) and Crosby v. Mills, 413 F.2d 1273, 1275 (10th

Cir. 1969) (same) with In re Hunter, 66 F.3d 1002, 1005-06 (9th

Cir. 1995) (rejecting notion of ancillary jurisdiction in inde-

pendent actions); United States v. Timmons, 672 F.2d 1373,

1378-79 (11th Cir. 1982) (same); and Andrade v. United States,

485 F.2d 660, 664 (Ct. Cl. 1973) (same), cert. denied, 419 U.S.

831, 95 S. Ct. 55, 42 L. Ed. 2d 57 (1974). See also 11 Charles A.

Wright, Arthur R. Miller & Mary K. Kane, Federal Practice &

Procedure: Civil § 2868 at 403 (2d ed. 1995) (supporting notion

of ancillary jurisdiction, citing generally Pacific R. Co. v.

Missouri Pac. Ry. Co., 111 U.S. 505, 522, 4 S. Ct. 588, 28 L. Ed.

498 (1884)); 7 James W. Moore, Moore’s Federal Practice {

60.38(1], at 60-399 (2d ed. 1995) (same).

13a

Oil was a federal diversity case in which the parties

to the original action were diverse, but after judg-

ment, sales of the property at stake defeated complete

diversity. 213 F.2d 702, 704 (5th Cir. 1954). In West

Virginia Oil, we held that the district court had

continuing diversity jurisdiction to correct errors in

the original judgment. /d. at 706-07. The “ancillary

jurisdiction” reasoning of West Virginia Oil has lit-

tle or no precedential value in light of the Supreme

Court’s holding in Kokkonen or in light of our prior

cases, reflected most recently in Bankers Mortgage,

in which we required that an independent action be

“founded upon an independent and substantive equita-

ble jurisdiction.” 423 F.2d at 78.

Moreover, to the extent that West Virginia Oil has

any value as precedent, the case is inapposite here

because it is on a completely different jurisdictional

footing. West Virginia Oil was a case in which the

parties could not review the judgment in federal court

without ancillary jurisdiction. Beggerly, on the

other hand, could have pursued this suit under several

different statutes conferring federal jurisdiction in-

dependent of that in the original action. The federal

courts would have had independent jurisdiction over

a timely action under the Quiet Title Act, 28 U.S.C.

§ 2409a; the Tucker Act, 28 U.S.C. § 1491; and pro-

bably general federal question jurisdiction under

28 U.S.C. § 1331 (putting sovereign immunity to one

side for the moment). Because there is no need to as-

sert ancillary jurisdiction to review the underlying

settlement in federal court, West Virginia Oil is not

14a

on point, even to the extent that it was ever good law

in the first place.”

My concern over the characterization of this suit

as independent or ancillary is not as serious as my

2 Our West Virginia Oil opinion relies solely on an apparent

misreading of Supreme Court precedent. In West Virginia Oil,

the court confused the history of independent actions and

the common law predecessors to the separate actions of Fed. R.

Civ. P. 60(b). Independent actions are distinct, and “should

under no circumstances be confused with ancillary common law

and equitable remedies, or their modern substitute, the 60(b)

motion.” Bankers Mortgage, 423 F.2d at 78. The West

Virginia Oil court simply cited a Supreme Court case that

found ancillary jurisdiction for the precursor to Rule 60(b)

motions, and held that there was similar ancillary jurisdiction

in independent actions.

The West Virginia Oil court relied on Pacific Railroad of

Missouri v. Missouri Pacific Railway Co., 111 U.S. 505, 522, 4

S. Ct. 583, 592, 28 L. Ed. 2d 498 (1884), which involved a bill in

equity to vacate a judgment on the basis of fraud. The bill in

equity in that case was a bill of review (one of the forebears of

Rule 60(b)), not an independent action in equity. Zegura, 104

F.2d at 35 (characterizing the bill in Pacific Railroad as a “bill

of review”). Therefore Pacific Railroad has little or no prece-

dentiai force for independent actions. A bill of review, like a

Rule 60(b) motion, had to be brought in the court that rendered

judgment and was essentially a request that the court reopen

the judgment to reverse or correct a final decree. Wright,

Miller & Kane, Federal Practice & Procedure: Civil § 2867 at

394. The unremarkable fact that a motion to reopen a judg-

ment enjoys ancillary jurisdiction therefore should not disturb

our precedents holding that independent actions in equity are

founded upon an independent and substantive equitable juris-

diction. Bankers Mortgage, 423 F.2d at 78. I agree with the

Bankers Mortgage court, and apparently the Supreme Court in

Kokkonen, that it is important not to confuse the two conceptu-

ally distinct avenues for review.

15a

other concerns: waiver of sovereign immunity and the

proper reach of the majority opinion.

The United States is, of course, immune from suit

without its consent, Loeffler v. Frank, 486 U.S. 549,

554, 108 S. Ct. 1965, 1969, 100 L. Ed. 2d 549 (1988), and

we are to construe waivers of sovereign immunity

“strictly in favor of the sovereign.” United States

Dep't of Energy v. Ohio, 503 U.S. 607, 615, 112 S. Ct.

1627, 1633, 118 L. Ed. 2d 255 (1992). Beggerly can cite

no statutory waiver of sovereign immunity in this

case, either in the original action or in the independ-

ent action. The majority bypasses the question of

sovereign immunity by holding that “governmental

consent is not required to bring an independent action

in the same court as the original action[,]” citing the

Second Circuit’s opinion in Weldon v. United States,

70 F.3d 1, 4 (2d Cir. 1995). Regardless of the equities

of any individual case, governmental consent is al-

ways required as a prerequisite to federal jurisdic-

tion. Loeffler, 486 U.S. at 554.

The Second Circuit’s opinion in Weldon is not to

the contrary. Although the Second Circuit in Wel-

don agrees with the majority that independent ac-

tions are “continuations” of the original actions they

challenge, the court does not claim that waiver of

sovereign immunity is unnecessary. In Weldon, the

parties sued under the Federal Tort Claims Act in

the original suit, which constituted a statutory

waiver of sovereign immunity. 70 F. 3d at 2. The

Weldon court held that, because the independent

action was essentially a continuation of the original

suit, the government’s waiver of sovereign immu-

nity in the original action should continue to bind

the United States in the subsequent challenge. Id.

Weldon does not suggest that waiver is unnecessary,

16a

only that it may be continued from the original suit.

So even if we were to find in the instant case that

independent actions should be considered a continua-

tion of the original actions they challenge (a point I

still dispute), there would still be no waiver of sover-

eign immunity in the original action for us to con-

tinue. Of course, we cannot equitably waive sover-

eign immunity on behalf of the government; therefore

we do not have jurisdiction to consider this suit.“

My final concern is that the majority reaches is-

sues not before us in this opinion. Even if there were

a waiver of sovereign immunity in this case, we would

have no jurisdiction to reach the merits of Beggerly’s

cross motion for summary judgment, the validity of

the Boudreau grant, or the ownership of Horn Island,

as the majority does. These issues are fraught with

difficult fact questions that must be decided by the

district court, which alone has jurisdiction to con-

sider them. Moreover, the majority should not have

reached those issues on the incomplete summary

judgment record before us, but instead should have

remanded them to the district court. Therefore I

respectfully dissent.

3 Presumably a timely challenge to the original action under

the Quiet Title Act or the Tucker Act, each of which involves a

statutory waiver of immunity, would not suffer from this

infirmity of the independent action in equity.

17a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-60625

CHRIS W. BEGGERLY; JAMES R. BEGGERLY;

CLARK M. BEGGERLY; VELMA B. GARNER;

SUZANNE REED; DavipD REED,

PLAINTIFFS-APPELLANTS,

UNITED STATES OF AMERICA, DEFENDANT-APPELLEE

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

Filed: May 29, 1997]

Before: PoLitz, Chief Judge, EulLio M. GARZA and

STEWART, Circuit Judges.

PoL ITZ, Chief Judge:

The Beggerlys appeal the district court’s order

granting the motion to dismiss by the United States

and denying the Beggerlys’ cross-motion for sum-

mary judgment in which they sought to vacate a

consent judgment under which the United States

acquired title to property previously held by the

Beggerlys. Concluding that the Beggerlys are enti-

tled to the relief sought, we reverse and remand.

18a

BACKGROUND

On April 3, 1950 Clark M. Beggerly, Sr., on behalf of

his family, bought real estate known as Horn Island,

offshore in the Gulf of Mexico, at a tax sale in Jack-

son, Mississippi. On January 8, 1971 Congress en-

acted legislation authorizing the Department of Inte-

rior to establish a federal park on lands that included

Horn Island.“ In 1972 the National Park Service be-

gan negotiating with the Beggerlys for the purchase

of Horn Island. In October 1975 the Beggerlys en-

tered into a contract to sell the land to the govern-

ment for $156,500. Subsequently the government can-

celed the contract contending that because it had

never issued a land patent, it was the title owner of

Horn Island.

In 1979 the government brought a quiet title action

in the Southern District of Mississippi against the

Beggerlys and other defendants. During discovery

the Beggerlys sought proof of their title, and govern-

ment officials ostensibly conducted a thorough search

of the public land records. The government then for-

mally represented to the Beggerlys and the district

court that Horn Island had never been granted to a

private landowner and, as a result, in 1982 the govern-

ment representation persuaded the Beggerlys to re-

luctantly accept a settlement agreement. The dis-

trict court entered judgment based upon that agree-

ment in which the Beggerlys received $208,175.87 and

title was quieted in favor of the United States.’

Their disappointment with the results of the set-

tlement led the Beggerlys to mount an exhaustive

1 16 U.S.C. § 459h.

2 United States v. Adams, No. S79-0338(R) (S.D. Miss. Dec.

3, 1982). 7

19a

search for a land patent to support their claim of title.

hey wrote letters to public officials, made Freedom

of Information Act requests, and searched land rec-

ords in Alabama, Mississippi, Louisiana, and Wash-

ington, D.C. Finally, in 1991 the Beggerlys hired a

genealogical record specialist who conducted re-

search in the National Archives and discovered the

Boudreau Grant which supported the Beggerlys’

claim of title. Government officials reportedly had

searched the National Archives during the quiet title

suit but had not discovered this document and thereaf-

ter crroneously asserted that Horn Island had be-

longed to the United States from the time of its

acquistion in the Louisiana Purchase. The Begger-

lys contacted the Bureau of Land Management re-

questing the issuance of a land patent for Horn

Island. The BLM summarily denied their request.

The Beggerlys then filed the instant action on June

1, 1994 seeking to set aside the consent judgment and

to recover just compensation. The government moved

to dismiss the complaint, invoking Fed.R.Civ.P.

12(b)(6) and 12(b)(1). The Beggerlys filed a cross-

motion for summary judgment and filed an amended

motion to add the Tucker Act* and the Quiet Title

Act* as jurisdictional bases. The district court

granted the government’s motion to dismiss and

denied the Beggerlys’ cross-motion for summary

judgment and motion to amend. The Beggerlys

timely appealed.

3 28 U.S.C. § § 1346, 1491.

* 28 U.S.C. § 2409a.

20a

ANALYSIS

1. Sovereign Immunity

The government contends that sovereign immunity

bars the Beggerlys from proceeding with an inde-

pendent action in equity. The government relies on

Zegura v. United States“ in which we held that

sovereign immunity barred a bill of review brought

to vacate a prior judgment obtained by the United

States. The Eleventh Circuit viewed Zegura as

controlling authority for the proposition that an

independent action could not be brought against the

government absent a waiver of sovereign immunity.“

We are not so persuaded and do not find Zegura as

controlling herein. Zegura dealt only with a bill

of review, which is a type of equitable action that

has been replaced by the motions enumerated in

Fed.R.Civ.P. 60(b). Although an independent action in

equity is similar to a bill of review and its modern

successors—the Rule 60(b) motions—it is nonethe-

less a different action. Rule 60(b) makes the distinc-

tion clear, stating that it does not “limit the power of

a court to entertain an independent action.” We

therefore conclude that Zeguwra does not control in

the independent action context.

We have held that an independent action filed in the

same court that rendered the original judgment is a

continuation of the original action for purposes of

subject matter jurisdiction.’ It would be anomalous to

torpedo a party bringing the independent action with

5 104 F.2d 34 (5th Cir.), cert. denied, 308 U.S. 586 (1939).

6 United States v. Timmons, 672 F.2d 1373 (11th Cir. 1982).

7 West Virginia Oil & Gas Co. v. George E. Breece Lumber

Co., 213 F.2d 702 (5th Cir. 1954).

21a

a plea of sovereign immunity when the action is in

reality a continuation of the original lawsuit in which

jurisdiction was not an issue. To allow the govern-

ment to use sovereign immunity as a shield where it

previously has subjected itself to the court’s

jurisdiction and prevailed based upon its misrepresen-

tations, negligence, or mistake would do unacceptable

violence to our basic notions of justice. We therefore

agree with our colleagues in the Second Circuit and

now conclude and hold that governmental consent is

not required to bring an independent action in the

same court as the original action.“

2. The Independent Action

The elements of an independent action are:

(1) a judgment which ought not, in equity and good

conscience, to be enforced; (2) a good defense to the

alleged cause of action on which the judgment is

founded; (3) fraud, accident, or mistake which pre-

vented the defendant in the judgment from obtain-

ing the benefit of his defense; (4) the absence of

fault or negligence on the part of the defendant;

and (5) the absence of any adequate remedy at law.“

The Beggerlys have satisfied these elements. We

now hold that the district court erred as a matter of

law in denying the Beggerlys’ action to vacate the

consent judgment. Crucial to that determination is

our conclusion that the district court erred in failing

to recognize the validity of the Boudreau Grant. That

document is an English translation of a 1781 Spanish

8 Weldon v. United States, 70 F.3d 1 (2d Cir. 1995).

® Bankers Mortgage Co. v. United States, 423 F.2d 73 (5th

Cir.) (quoting National Sur. Co. v. State Bank, 120 F. 593, 599

(8th Cir.1903)), cert. denied, 90 S.Ct. 2242 (1970).

22a

land grant in which the Governor General of Spanish

Louisiana conveyed Horn Island to Catarina

Boudreau. Although the available document is not the

original grant, it is the only copy available, presuma-

bly because a fire destroyed the Spanish West Florida

archives where the original Spanish version would

have been stored. The Supreme Court has held that a

certified translation of a Spanish land grant may be

used to prove the existence of a grant where the

original cannot be found or has been destroyed.” We

therefore find and conclude that the English transla-

tion is the best evidence of the original grant and is

admissible to prove its existence.

At oral argument the government characterized

the Boudreau Grant as an application for confirmation

of a patent. That must be viewed as a misstatement of

law. After the Louisiana Purchase, a procedure was

established whereby landowners who had acquired

property from England, France, or Spain could apply

to the United States for a land patent by presenting

the grant they had received from the sovereign

grantor. Heirs of Catarina Boudreau presented the

Boudreau Grant to the land commissioner for claims

east of the Pearl River. The government suggests

that because the commissioner did not confirm the

application, the United States refused to relinquish

title to Horn Island. That argument ignores Supreme

Court precedent to the contrary. In United States v.

Percheman, Chief Justice John Marshall overruled a

prior interpretation of the Treaty of Amity with

Spain and held that private land grants by Spain in

East and West Florida were to be treated as

United States v. Delespine s Heirs, 37 U.S. (12 Pet.) 654

(1838).

23a

confirmed land patents under United States law.“

When the grants were valid under Spanish law and

were granted while Spain rightfully possessed the

land, the United States recognized the claims of pri-

vate landowners as a matter of law.” In the case at

bar the government does not challenge the validity of

the grant under the Spanish law of 1781, nor is there

any doubt that Spain owned Horn Island at the time

it made the grant. Accordingly, after the Louisiana

Purchase, Horn Island did not become property of the

United States but, rather, belonged to the successors

in interest of Catarina Boudreau.

The government possessed a document proving that

the United States never had title to Horn Island.

Notwithstanding, it represented to the Beggerlys and

to the district court that no such document existed,

leading to the Beggerlys’ involuntary settlement

with the government. Their inability to prove their

title was directly caused by the government’s misfil-

ing of the grant and its misrepresentation that no

private disposal had ever been made. Equity permits

us to correct injustice in extraordinary and unusual

circumstances such as are here presented. We exer-

cise that authority and set aside the challenged con-

sent judgment as null and void ab initio.”

1 32 U.S. (7 Pet.) 51 (1833) (overruling in part Foster v.

Neilson, 27 U.S. (2 Pet.) 253 (1829)); see also United States v.

Postal, 589 F.2d 862 (5th Cir.), cert. denied, 444 U.S. 832

(1979).

2 See Garcia v. Lee, 37 U.S. (12 Pet.) 511 (1838); United

States v. Arrendondo, 31 U.S. (6 Pet.) 691 (1832).

We note that there are no fixed time limitations on

bringing an independent action in equity. Jn re West Teras

Mktg. Corp., 12 F.3d 497 (5th Cir. 1994).

24a

3. Quiet Title Act Claim

The Beggerlys filed a motion to amend their com-

plaint to claim relief under the Quiet Title and

Tucker Acts. The district court denied that motion.

Although the district court did not have jurisdiction

to hear the Tucker Act claim," it did have jurisdiction

over the Quiet Title Act. We conclude that the dis-

trict court abused its discretion and should have

allowed the Beggerlys to amend their complaint be-

cause the requested amendment would have done

no more than state an alternative jurisdictional basis

for recovery upon the facts previously alleged.””

The record reflects that the Beggerlys legally ac-

quired Horn Island in a tax sale. Because we have set

aside the earlier judgment and have found that the

United States has no legitimate claim to the land, the

validity of the Beggerlys’ title is a legal certainty.

The government maintains, however, that a claim

under the Quiet Title Act is barred unless it is com-

menced within 12 years of the date on which it

accrued.” A claim is deemed to accrue on the date the

plaintiff knows or should have known about the claim

of the United States.” The Beggerlys knew about the

claim in 1979 when the United States filed suit, and

more than 12 years passed before the Beggerlys com-

menced the current action. A statute of limitations,

however, may be tolled on equitable grounds. “Equi-

table tolling applies principally where the plaintiff is

actively misled by the defendant about the cause of

4 See 28 U.S.C. §§ 1346, 1491 (vesting exclusive jurisdiction

in the Federal Court of Claims for claims exceeding $10,000).

5 Miller v. Stanmore, 636 F.2d 986, 990 (5th Cir. 1981).

28 U.S.C. § 2409a(g).

= id.

25a

action or is prevented in some extraordinary way

from asserting his rights.“ On the record before us

the government may not benefit from the limitations

period, especially in light of the diligence displayed by

the Beggerlys in seeking the truth and pursuing

their rights, which resulted in their discovering a

grant that apparently not even custodians of the

public land records could locate. We conclude that the

limitations period was tolled until the Beggerlys dis-

covered the Boudreau Grant and, thus, that their

action manifestly was filed within the 12-year limita-

tions period.

We remand to the district court so that it may

enter judgment quieting title in favor of the Begger-

lys and fashion an appropriate remedy, taking into

account the compensation of $208,175.87 received by

the Beggerlys in 1982. The judgment of the district

court is REVERSED and judgment is RENDERED

in favor of the Beggerlys and this cause is RE-

MANDED for further proceedings consistent

herewith.

EmILio M. GARZEZA, Circuit Judge, dissenting:

I agree with much of today’s majority opinion. I agree

with the majority that the complaint is not a motion

under Fed. R. Civ. P. 60(b)(1)-(6), and that it should

more properly be considered an independent action in

equity, since Beggerly explicitly invoked the

equitable jurisdiction of the district court in his

complaint. I agree with the majority that the district

court erred in dismissing the action as untimely,

W Rashidi v. American President Lines, 96 F.3d 124, 128

(5th Cir. 1996). Equitable tolling may be applied against the

United States. Irwin v. Department of Veterans Affairs, 111

S.Ct. 453 (1990).

26a

because there is no fixed limitations period for such

equitable actions. And finally, I agree with the major-

ity that the equities of this case favor Beggerly and

his family. However, because we do not have jurisdic-

tion to provide such relief, I must part company with

the majority. As judges, we have equitable discretion

to do justice within the limits of the law, but we can

go no further. In this case, the government has not

waived its sovereign immunity to suit, which bars our

jurisdiction to provide relief.

As an initial matter, I would not treat an independ-

ent action in equity as a “continuation” of the under-

lying suit with ancillary jurisdiction from the origi-

nal action. In a similar context, the Supreme Court

appears to have foreclosed the notion of ancillary

jurisdiction in cases such as this one, involving a

challenge to a settlement agreement in federal court.

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 380, 114 8. Ct. 1673, 1676, 128 L. Ed. 2d 391 (1994)

(“No case of ours asserts, nor do we think the concept

of limited federal jurisdiction permits us to assert,

ancillary jurisdiction over any agreement that has as

part of its consideration the dismissal of a case before

a federal court.”).

Furthermore, the Fifth Circuit has long held that

independent actions must have jurisdiction independ-

ent of the judgments they challenge. Bankers Mort-

gage Trust Co. v. United States, 423 F.2d 73, 78 (5th

Cir.), cert. denied, 399 U.S. 927, 90 S. Ct. 2242, 26 L.

Ed. 2d 793 (1970); Jones v. Watts, 142 F.2d 575 (5th

Cir.), cert. denied, 323 U.S. 787, 65 S. Ct. 310, 89 L.

Ed. 628 (1944); Zegura v. United States, 104 F.2d 34,

27a

35 (5th Cir.), cert. denied, 308 U.S. 586, 60 S. Ct. 109,

84 L. Ed. 490 (1939).

West Virginia Oil & Gas v. George E. Breece

Lumber, cited by the majority, appears to have cre-

ated an exception to this general rule. West Virginia

Oil was a federal diversity case in which the parties

to the original action were diverse, but after judg-

ment, sales of the property at stake defeated complete

diversity. 213 F.2d 702, 704 (5th Cir. 1954). In West

Virginia Oil, we held that the district court had

continuing diversity jurisdiction to correct errors in

the original judgment. Id. at 706-07. The “ancillary

jurisdiction” reasoning of West Virginia Oil has

little or no precedential value in light of the Supreme

Court’s holding in Kokkonen or in light of our prior

cases, reflected most recently in Bankers Mortgage,

in which we required that an independent action be

“founded upon an independent and substantive equita-

ble jurisdiction.” 423 F.2d at 78.

I recognize that there is a conflict among the other cir-

cuits regarding whether independent actions require independ-

ent jurisdiction. Compare Weldon v. United States, 70 F.3d 1, 4

24 Cir. 1995) (holding that independent actions are ancillary to

original suit) and Crosby v. Mills, 413 F.2d 1273, 1275 (10th Cir.

1969) (same) with In re Hunter, 66 F.3d 1002, 1005-06 (9th Cir.

1995) (rejecting notion of ancillary jurisdiction in independent

actions); United States v. Timmons, 672 F.2d 1373, 1378-79

(11th Cir. 1982) (same); and Andrade v. United States, 485

F. 2d 660, 664 (Ct. Cl. 1973) (same), cert. denied, 419 U.S. 831, 95

S. Ct. 55, 42 L. Ed. 2d 57 (1974). See also 11 Charles A. Wright,

Arthur R. Miller & Mary K. Kane, Federal Practice &

Procedure: Civil § 2868 at 403 (2d ed. 1995) (supporting notion

of ancillary jurisdiction, citing generally Pacific R. Co. v.

Missouri Pac. Ry. Co., 111 U.S. 505, 522, 4 S. Ct. 583, 28 L. Ed.

498 (1884)); 7 James W. Moore, Moore’s Federal Practice 1

60.3811], at 60-399 (2d ed. 1995) (same).

28a

Moreover, to the extent that West Virginia Oil has

any value as precedent, the case is inapposite here

because it is on a completely different jurisdictional

footing. West Virginia Oil was a case in which the

parties could not review the judgment in federal

court without ancillary jurisdiction. Beggerly, on

the other hand, could have pursued this suit under

several different statutes conferring federal juris-

diction independent of that in the original action. The

federal courts would have had independent jurisdic-

tion over a timely action under the Quiet Title Act,

28 U.S.C. § 2409a; the Tucker Act, 28 U.S.C. § 1491;

and probably general federal question jurisdiction

under 28 U.S.C. § 1331 (putting sovereign immunity

to one side for the moment). Because there is no need

to assert ancillary jurisdiction to review the underly-

ing settlement in federal court, West Virginia Oil is

not on point, even to the extent that it was ever good

law in the first place.’

Our West Virginia Oil opinion relies solely on an apparent

misreading of Supreme Court precedent. In West Virginia Oil,

the court confused the history of independent actions and

the common law predecessors to the separate actions of Fed. R.

Civ. P. 60(b). Independent actions are distinct, and “should

under no circumstances be confused with ancillary common law

and equitable remedies, or their modern substitute, the 60(b)

motion.” Bankers Mortgage, 423 F.2d at 78. The West

Virginia Oil court simply cited a Supreme Court case that

found ancillary jurisdiction for the precursor to Rule 60(b)

motions, and held that there was similar ancillary jurisdiction

in independent actions.

The West Virginia Oil court relied on Pacific Railroad of

Missouri v. Missouri Pacific Railway Co., 111 U.S. 505, 522, 4

S. Ct. 583, 592, 28 L. Ed. 2d 498 (1884), which involved a bill in

equity to vacate a judgment on the basis of fraud. The bill in

equity in that case was a bill of review (one of the forebears of

29a

My concern over the characterization of this suit

as independent or ancillary is not as serious as my

other concerns: waiver of sovereign immunity and the

proper reach of the majority opinion. The United

States is, of course, immune from suit without its

consent, Loeffler v. Frank, 486 U.S. 549, 554, 108 S.

Ct. 1965, 1969, 100 L. Ed. 2d 549 (1988), and we are to

construe waivers of sovereign immunity “strictly in

favor of the sovereign.” United States Dep't of En-

ergy v. Ohio, 503 U.S. 607, 615, 112 8. Ct. 1627, 1633,

118 L. Ed. 2d 255 (1992). Beggerly can cite no statu-

tory waiver of sovereign immunity in this case, either

in the original action or in the independent action.

The majority bypasses the question of sovereign

immunity by holding that “governmental consent is

not required to bring an independent action in the

same court as the original action[,]” citing the Second

Circuit’s opinion in Weldon v. United States, 70 F.3d

1, 4 (2d Cir. 1995). Regardless of the equities of any

individual case, governmental consent is always re-

Rule 60(b)), not an independent action in equity. Zegura, 104

F.2d at 35 (characterizing the bill in Pacific Railroad as a “bill

of review”), therefore it has little or no precedential force for

independent actions. A bill of review, like a Rule 60(b) motion,

had to be brought in the court that rendered judgment and was

essentially a request that the court reopen the judgment to

reverse or correct a final decree. Wright, Miller & Kane,

Federal Practice & Procedure: Civil § 2867 at 394. The unre-

markable fact that a motion to reopen a judgment enjoys

ancillary jurisdiction therefore should not disturb our prece-

dents holding that independent actions in equity are founded

upon an independent and substantive equitable jurisdiction.

Bankers Mortgage, 423 F.2d at 78. I agree with the Bankers

Mortgage court, and apparently the Supreme Court in

Kokkonen, that it is important not to confuse the two

conceptually distinct avenues for review.

30a

quired as a prerequisite to federal jurisdiction.

Loeffler, 486 U.S. at 554.

The Second Circuit’s opinion in Weldon is not to

the contrary. Although the Second Circuit in Wel-

don agrees with the majority that independent ac-

tions are “continuations” of the original actions they

challenge, the court does not claim that sovereign

immunity is unnecessary. In Weldon, the parties

sued under the Federal Tort Claims Act in the

original suit, which constituted a statutory waiver of

sovereign immunity. 70 F. 3d at 2. The Weldon court

held that, because the independent action was essen-

tially a continuation of the original suit, the govern-

ment’s waiver of sovereign immunity in the original

action should continue to bind the United States in

the subsequent challenge. Jd. Weldon does not sug-

gest that waiver is unnecessary, only that it may be

continued from the original suit. So even if we were

to find in the instant case that independent actions

should be considered a continuation of the original

actions they challenge (a point I still dispute), there

was no waiver of sovereign immunity in the original

action for us to continue. Of course, we cannot equi-

tably waive sovereign immunity on behalf of the

government; therefore we do not have jurisdiction to

consider this suit.“

My final concern is that the majority reaches

issues not before us in this opinion. Even if there

were a waiver of sovereign immunity in this case, we

would have no jurisdiction to reach the merits of

3’ Presumably a timely challenge to the original action under

the Quiet Title Act or the Tucker Act, each of which involves a

statutory waiver of immunity, would not suffer from this

infirmity of the independent action in equity.

31a

Beggerly's eross motion for summary judgment, the

validity of the Boudreau grant, or the ownership of

Horn Island, as the majority does. These issues are

fraught with difficult fact questions that must be

decided by the district court, which alone has ju-

risdiction to consider them. Moreover, the majority

should not have reached those issues on the incom-

plete summary judgment record before us. Therefore

I respectfully dissent.

32a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

SOUTHERN DIVISION

Civil Action No. 1:94-CV-264RR

CHRIS BEGGERLY, ET AL., PLAINTIFF

UNITED STATES OF AMERICA, DEFENDANT

[Filed: Aug. 17, 1995]

MEMORANDUM ORDER

This matter is before the Court on Defendant’s

Motion to Dismiss and Plaintiffs’ Motion for Sum-

mary Judgment. |

Background

On April 3, 1950, Clark M. Beggerly Sr. (now

deceased) purchased for $51.20 approximately 626

acres on Horn Island’ at a delinquent-tax sale at the

Jackson County Courthouse. See Complaint at 2-3;

Plaintiffs’ Exh. A. At the same sale, Beggerly and a

friend, A.E. Hurd, purchased for $31.25 approximately

225 acres on Horn Island, which they later divided.

Horn Island is located in the Gulf of Mexico approxi-

mately 13 miles southwest of Pascagoula, Mississippi. The

island is approximately 14 miles in length and 1/2 to 3/4 mile in

width.

33a

See Compiaint at 3; Plaintiffs’ Exh. B. This division

left Beggerly with two tracts—the 626-acre tract and

a 103-acre tract (approximation). See Plaintiffs’

Memorandum Brief in Support of Motion for Sum-

mary Judgment at 1 (hereinafter “Plaintiffs’ Brief”);

Defendant’s Sur-Response at Exh. A. Through con-

veyances, Beggerly’s children (hereinafter “Beg-

gerly” unless otherwise noted) inherited the property

in 1971. See Plaintiffs’ Exh. 3, at 2 (Affidavit of Chris

Beggerly).

In that same year, the United States Congress

established the Gulf Islands National Seashore in

order to preserve for public use and enjoyment cer-

tain areas possessing outstanding natural, historic,

and recreational values.” 16 U.S.C. sec. 459(h). This

national seashore would include the barrier islands of

Ship, Petit Bois, and Horn upon acquisition through

purchase or other necessary means. Id.

In 1974, the National Park Service (“NPS”) offered

Beggerly $156,500.00 for the 626-acre tract based upon

an appraisal of $156,000.00. Beggerly accepted the

offer. See United States’ Memorandum in Support of

Motion to Dismiss at 1 (hereinafter “United States’

Memorandum”); Plaintiffs’ Exh. 3, at 7.2 But the deal

2 Chris Beggerly notes that the offer concerned only his

brother, in whose name the 626-acre tract was titled:

After three or four hours of talking and going back and

forth, a deal was reached for them (U.S. Government)

to buy Raleigh’s part of the property .... Raleigh

signed a contract to sell and I witnessed it.. Before

going to this meeting I had talked with Raleigh about

holding out, but he . . . had decided that he needed to

get rid of this problem and not have to face the on-going

bother that was caused by dealing with the government

with this land. As I said all along, we have always

34a

fell through after NPS learned through an “exhaus-

tive search of the records of the [U. S. Department of

Interior] Bureau of Land Management’s Eastern

States Office” that Beggerly’s property had never

been patented by the United States Government “and

had at all times been the property of the United

States.” See United States’ Memorandum at 1-2.

Thus, in 1979, the United States filed a Complaint to

quiet title.“ See Defendant’s Exh. A. Three years

later, the United States and Beggerly reached a set-

leinen. The United States paid Beggerly $208,175.87.

Id. at 2. The United States based its offer on apprais-

als for the 626-acre tract ($156, 500.00) and the 103-

acre tract ($27,125.00); the offer also accounted for

Beggerly’s attorney’s fees and other costs. See De-

fendant’s Sur-Response at Exh. “A.”

Chris Beggerly explains why the family agreed to

settle:

As we got close to trial I thought we had a good

case, but [James] Martin [his attorney] told us

that we would not be able to win because we could

not prove that we had good patents. The govern-

ment came up with some money and everybody

decided to settle. I didn’t want any part of it, but

finally had to agree with my lawyer told me I had

no choice.

worked together and once I realized that’s what was best

for him, then that suited me.

See Plaintiffs’ Exh. 3, at 7.

The quiet-title action involved numerous defendants in

addition to Beggerly. See United States’ Exh. A (United

States v. Adams, et. al.).

35a

See Plaintiff’s Exh. 3, at 10.“

In accordance with the settlement terms, Magis-

trate Judge John M. Roper issued the “Judgment and

Order”:

This matter having come before the Court for a

hearing and the Court having considered the

evidence presented and the terms of a stipulation

for Settlement

IT IS ORDERED that judgment is hereby

entered in favor of the United States, and title to

all lands on Horn [Island] . .. is quieted in the

United States .;

FURTHER ORDERED that all defendants and

their heirs are permanently enjoined from as-

serting any adverse claims to the subject property

* §

FURTHER ORDERED that the United

States has title in fee simple absolute to and full

rights of possession of the subject property.

See Defendant’s Exh. C.

Judge Roper’s Order notwithstanding, Beggerly

continued to research whether a patent had ever been

issued for the Horn Island property.’ In 1994,

According to the Complaint, Beggerly decided to settle

upon “having no hope of producing the all important grant or

patent by the trial date” and “(realiz[ing] the futility of going

to trial.” See Complaint at 10.

5 “Along the way I [Beggerly] wrote letters to Presidents

Carter, Reagan and Bush, Secretaries of the Interior, Andrus

Watts and Lujon [sic] and many other federal and state officials

and employees. From time to time someone would try to be

helpful, but most of the time they told me that since I didn’t

36a

after thirteen or more years of research, Beggerly

filed a Complaint seeking to have the settlement

agreement—as well as Judge Roper’s Judgment and

Order—set aside. Beggerly contends that newly dis-

covered evidence—a grant predating the Louisiana

Purchase and made by the Governor General of Span-

ish Louisiana to Catalina Boudreau—validates his

claim to the Horn Island property.“

Beggerly seeks to have the settlement agreement

and judgment set aside on the bases of fraud, mutual

have a patent, there was nothing they could do.” Plaintiffs’

Exh. 3, at 10-11 (affidavit of Chris Beggerly).

Beggerly’s correspondence with government officials has

been less-than-cordial:

Justice in our system is a damn joke. | got this case in

Dan Quayle Compentiency [sic] Council also. They

dropped it? I got the shaft again. Lujon [sic] this is in

the hands of your people, if they aren't lying too, so you

got to them get the facts and if you've got guts enough

call me at 601-845-6742.

Letter from Chris Beggerly to Interior Secretary Manual

Lujan and copied to “President George Bush, Vice President

Dan Quayle, Senator Thad Cochran, Congressman Sonny Mont-

gomery, Senator Trent Lott, John Stossell [of ABC’s) 20/20,

American Legion [and] Christiania [sie] Clark” (dated Sept. 25,

1992), quoted in Defendant’s Sur-Response at Exh. B.

Prior to filing the Complaint, Beggerly requested that the

Bureau of Land Management (“BLM”) reconsider the validity

of his title to the Horn Island property in light of this newly

discovered Spanish land grant. Through a lengthy response,

BLM explained there is no affirmative evidence that the

Spanish land grant you provided was ever properly confirmed

and without such evidence the 1982 judgment stands and BLM

is without power to issue a patent.” See Plaintiff's Exh. 3(c).

Notably, a copy of this “Spanish land grant” has not been made

a part of the record or been provided to the United States.

See United States’ Sur-Response at 3-4.

37a

mistake, and inverse condemnation. Beggerly also

seeks “not less than $14,500 per acre plus interest and

attorney’s fees.”

Jurisdiction

Beggerly bases jurisdiction, which is disputed to

the extent noted in this Memorandum Order, on 28

U.S.C. sec. 1331 “because it arises under the Consti-

tution, laws, and treaties of the United States.” See

Complaint at 1. Beggerly also contends that “this

Court has jurisdiction because this action is ancillary

to the action filed by the United States in 1979 in

United States v. Adams, et. al.“ Id.

Discussion

Rule 60 of the Federal Rules of Civil Procedure

provides the means through which an aggrieved party

may seek relief from a judgment or order. See

McDonald v. Oliver, 642 F.2d 169, 171 (5th Cir. 1981).

The rule provides, in pertinent part, that:

On motion and upon such terms as are just, the

court may relieve a party or a party’s legal

representative from a final judgment, order, or

proceeding for the following reasons: (1) mistake,

inadvertence, surprise, or excusable neglect; (2)

In his Memorandum Brief in Support of Motion for Sum-

mary Judgment, Beggerly relies upon jurisdictional grounds

not relied upon in his Complaint. See, e.g., Compare Com-

plaint at 1 (relying on 28 U.S.C. sec. 1331 and ancillary

jurisdiction), with Plaintiffs Memorandum Brief at 19-20

(relying on 28 U.S.C. sec. 2409%a)). In view of Beggerly’s fail-

ure to amend his pleadings, this Court need not address the

issue or issues raised for the first time in his Motion for Sum-

mary Judgment—i.e., whether 28 U.S.C. sec. 2409(a) or other

grounds not relied upon in the Complaint provide relief from

the 1982 judgment. See Fed. R.Civ.P. 8(a) & 15.

38a

newly discovered evidence which by due diligence

could not have been discovered in time to move for

a new trial under Rule 59(b); (3) fraud ... ,

misrepresentation, or other misconduct of an

adverse party. . . . The motion shall be made

within a reasonable time, and for reasons (1), (2),

and (3) not more than one year after the

judgment, order, or proceeding was entered or

taken . [TJhe procedure for obtaining any

relief from a judgment shall be by motion as

prescribed in these rules or by an independent

action.

“Except in extraordinary circumstances .. . , the

law favors an end to lawsuits rather than a free

reopening and retrial of them.” Lockwood v.

Bowles, 46 F.R.D. 626, 633 (D.D.C. 1969), quoted in

Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 n.3

(5th Cir. 1978).

This Court need not address the merits of Beg-

gerly’s allegations of fraud, mistake,” and newly

As aptly noted by the Fifth Circuit nearly three decades

ago: “Federal Courts have held under a variety of circum-

stances that a settlement agreement once entered into cannot

be repudiated by either party and will be summarily enforced.”

Cia Anon Venezolana de Navegacion v. Harris, 374 F.2d 33,

35 (5th Cir. 1967) (citing cases), quoted in Howard v. Chris-

Craft Corp., 562 F.Supp. 932, 936 (E.D. Tex. 1982) (citing

cases from other circuit courts).

The party seeking to set aside a settlement agreement or

judgment on grounds of fraud “faces a stiff standard of proof.”

Howard v. Chris-Craft Corp., 562 F Supp. 932, 937 (E.D. Tex.

1982). The Seventh Circuit articulated this standard:

One who relies upon fraud, misrepresentation or con-

cealment [to set aside a settlement agreement} must suf-

ficiently allege facts and prove it. The allegations and

39a

discovered evidence" because of their untimeliness.”

On December 3, 1982, Beggerly signed the settlement

proof must be clear and convincing and must show (1) a

representation, (2) its falsity, (3) its materiality, (4) the

speaker’s knowledge of the falsity or ignorance of the

truth, (5) his intent that it should be acted on by the

person and in the manner reasonably contemplated, (6)

the hearer’s ignorance of its falsity, (7) his reliance on

its truth, and (8) his right to rely thereon.

Clarion Corp. v. American Home Products, 494 F.2d 860,

864-65 (7th Cir. 1974), quoted in Howard, 562 F.Supp. at 937.

In the case sub judice, Beggerly has wholly failed to discuss his

allegations of fraud in specific terms of these critical elements.