ASKINS et al v. USA

Filing 60

ORDER denying 8 Motion to Dismiss - Rule 12(b)(1). Status report due December 28, 2012. Signed by Judge Victor J. Wolski. (smz) Copy to parties.

In the United States Court of Federal Claims
No. 07-650L
(Filed December 10, 2012)
NOT FOR PUBLICATION
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THOMAS H. ASKINS, JR., et al., for
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themselves and on behalf of a class of
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persons similarly situated,
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Plaintiffs,
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v.
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THE UNITED STATES,
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Defendant.
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ORDER
This is a companion case to Abernethy v. United States, No. 07-651L. Like Abernethy, its
plaintiffs are individuals who own property in Virginia Beach or Chesapeake, Virginia, in the
vicinity of Naval Air Station Oceana or Naval Auxiliary Landing Field Fentress, and who allege
that on July 1, 1999, the increased operation of F/A-18 C/D fighter jets at these naval facilities
resulted in the taking of their property without payment of just compensation. Class Action
Complaint for Inverse Condemnation ¶¶ 1, 5, 21-25, 29-33. The only difference between the two
cases is that the five couples (owning six properties) who are plaintiffs in this matter have brought
the action as a class action.
For the reasons more fully stated in the Memorandum Opinion and Order in Abernethy,
also filed today, the government’s pending motion to dismiss, or alternatively for summary
judgment, is DENIED. Since plaintiffs were putative members of the classes for which
certification was unsuccessfully sought in Testwuide v. United States, 56 Fed. Cl. 755 (2003), the
filing of that class action complaint on April 5, 2001, tolled the running of the six-year limitations
period under 28 U.S.C. section 2501, pursuant to the class action tolling adopted by the Federal
Circuit in Bright v. United States, 603 F.3d 1273 (Fed. Cir. 2010). At that time just one year, nine
months, and four days of the period had expired. The denial of class certification on June 17,
2003, see Testwuide, 56 Fed. Cl. at 765-67, resumed the running of the limitations period. The
four years and eighty-seven days which remained of this period did not expire until September 12,
2007. Plaintiffs filed their complaint on September 5, 2007, before the limitations period expired.
The complaint was timely filed, and accordingly the government’s motion to dismiss for lack of

subject-matter jurisdiction, under Rule 12(b)(1) of the Rules of the United States Court of Federal
Claims (“RCFC”), is DENIED.
The government’s motion in the alternative for summary judgment on its defense of laches
is also DENIED. The defendant has neither demonstrated that the plaintiffs were indisputably
unreasonable in utilizing nearly the entire class action tolling period, nor shown the absence of a
genuine dispute of any fact material to its contention of “defense prejudice.” See Cornetta v.
United States, 851 F.2d 1372, 1378 (Fed. Cir. 1988) (en banc). The government’s only specific
contention of prejudice was based on three allegedly critical witnesses who had retired from
military service and whose availability was questioned. See Def.’s Reply (ECF No. 16) at 28-29.
But each of these individuals was deposed for purposes of the Testwuide litigation, see Pls.’
Sur-reply (ECF No. 23) at 16-17.
Although it was not encompassed within the government’s motion to dismiss, the issue of
the applicability of the rule against the use of tolling to “stack” successive class actions arose in the
course of briefing and argument. See Pls.’ Mem. of Law in Opp’n to Def.’s Mot. (ECF No. 11) at
2-8. It appears to the Court that the denial of class certification in Testwuide was the sort of
“definitive determination of the inappropriateness of class certification,” Korwek v. Hunt, 827
F.2d 874, 879 (2d Cir. 1987), that qualifies for application of the rule against stacking.
Certification was not denied because of deficiencies of the putative representatives, but rather
because the court feared that material factual differences existed among members of the classes as
defined. See Testwuide, 56 Fed. Cl. at 765-66. Whether this is considered a decision that
common questions did not predominate, or that a class action would be too difficult to manage, see
RCFC 23(b)(3), the court clearly found class certification to “be entirely inappropriate,”
Testwuide, 56 Fed. Cl. at 765, on grounds having nothing to do with the suitability of the purported
class representatives. But since the motion to dismiss does not present the proper occasion to
resolve the stacking issue, the Court will reserve definitive judgment for the appropriate vehicle,
such as a motion for class certification or a motion to strike.
Due to the application of class action tolling, the complaint in this case was timely filed.
The government’s defense of laches is subject to a genuine dispute of material fact. Accordingly,
the motion to dismiss is DENIED, as is defendant’s motion in the alternative for summary
judgment. The parties shall file a Joint Status Report on or by December 28, 2012, proposing a
schedule for further proceedings.
IT IS SO ORDERED.

s/ Victor J. Wolski
VICTOR J. WOLSKI
Judge

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