United States Court of Appeals for the Federal Circuit
05-1104
HARVEY DUMARCE, KENNETH ERVIN DUMARCE, COLLEEN RENVILLE DUMARCE, PAMELA RENVILLE, and DENNIS L. DUMARCE, SR.,
Plaintiffs-Appellees,
v.
DIRK KEMPTHORNE, Secretary of the Interior, DEPARTMENT OF THE INTERIOR, and UNITED STATES,
Defendants-Appellants.
David P. Graham, Oppenheimer Wolff & Donnelly LLP, of Minneapolis, Minnesota, filed a petition for rehearing en banc for plaintiffs-appellees. With him on the petition was David A. Prange.
Kathryn E. Kovacs, Attorney, Appellate Section, Environment & Natural Resources Division, United States Department of Justice, of Washington, DC, filed a response to the petition for defendants-appellants. With her on the response was Sue Ellen Wooldridge, Assistant Attorney General.
Appealed from: United States District Court for the District of South Dakota
Judge Charles B. Kornmann United States Court of Appeals for the Federal Circuit 2005-1104
HARVEY DUMARCE, KENNETH ERVIN DUMARCE, COLLEEN RENVILLE DUMARCE, PAMELA RENVILLE, and DENNIS L. DUMARCE, SR.,
Plaintiffs-Appellees,
v.
DIRK KEMPTHORNE, Secretary of the Interior, DEPARTMENT OF THE INTERIOR, and UNITED STATES,
Defendants-Appellants.
ON PETITION FOR REHEARING EN BANC
Before MICHEL, Chief Judge, NEWMAN, MAYER, LOURIE, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE, Circuit Judges.
ORDER
A petition for rehearing en banc was filed by the Appellees, and a response
thereto was invited by the court and filed by the Appellants. The matter was referred
first as petition for panel rehearing to the panel that heard the appeal, and thereafter the
petition for rehearing en banc and response were referred to the circuit judges who are
authorized to request a poll whether to rehear the appeal en banc. A poll was
requested, taken, and failed.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petition for rehearing is denied.
(2) The petition for rehearing en banc is denied. (3) The mandate of the court will issue on October 11, 2006.
GAJARSA, Circuit Judge, dissents in a separate opinion, in which NEWMAN,
Circuit Judge, joins.
FOR THE COURT
_Oct 4_2006__ _s/Jan Horbaly___ Date Jan Horbaly Clerk
cc: David P. Graham, Esq. Kathryn E. Kovacs, Esq.
2005-1104 2 US COURT OF APPEALS FOR THE FEDERAL CIRCUIT
2005-1104
HARVEY DUMARCE, KENNETH ERVIN DUMARCE, COLLEEN RENVILLE DUMARCE, PAMELA RENVILLE, and DENNIS L. DUMARCE, SR.,
Plaintiffs-Appellees.
v.
P. LYNN SCARLETT, Acting Secretary of the Interior, DEPARTMENT OF THE INTERIOR, and UNITED STATES,
Defendants-Appellants.
GAJARSA, Circuit Judge, with whom Circuit Judge NEWMAN joins, dissents from the denial of en banc hearing.
I must dissent from the failure of this court to review this matter en banc. I
believe that the panel's decision reversing the district court's judgment in this case
merits reconsideration en banc in light of the Supreme Court's recent decision in Jones
v. Flowers, 126 S. Ct. 1708 (2006). The due process principles announced in Jones
suggest that the notice provided by the government to the plaintiffs in this case was
constitutionally inadequate. If the notice failed the requirements of due process, it
certainly also violated the government's fiduciary duty to inform DuMarce of all the facts
giving rise to her cause of action. Violation of that fiduciary duty, in turn, requires the equitable tolling of the statute of limitations. See Menominee Tribe of Indians v. United
States, 726 F.2d 718, 721 (Fed. Cir. 1984).
In Jones, the Supreme Court notes the long-settled principle that notice of a
deprivation "must be such as one desirous of actually informing" the recipient "might
reasonably adopt to accomplish it," and must take "due regard for the practicalities and
peculiarities" of the individual circumstances. Mullane v. Cent. Hanover Bank & Trust
Co., 339 U.S. 306, 315 (1950). Jones addresses whether one particular "circumstance
and condition"—knowledge by the state that its initial attempt to provide notice of a
property forfeiture has failed—acts to vary the constitutionally required notice. Jones,
126 S. Ct. at 1714. It holds that such knowledge does increase the notice due,
requiring the government to take enhanced measures to provide notice. Id. at
1718.
Dumarce's case, like Jones's, involves a property forfeiture. The question is
whether the notice provided to DuMarce was constitutionally adequate in light of the
"circumstances and conditions" in which it was delivered. I believe that it was not, and
that the principles of Jones required us to reconsider DuMarce's case en banc.
The government's notice to DuMarce in this case stated simply that "[p]art of [her
father's] land interests in the Sisseton Reservation are subject to Pub. L. 98-513 . . . . In
addition, if the decedent's interest in a parcel of land amounts to less than 2 ½ acres,
then such interest escheats to the Tribe. . . . Therefore, as set forth above, the
decedent's respective interests . . . shall escheat to the United States."
Few lay people would understand the drastic import of the legalism "escheat."
One enterprising enough to consult a common dictionary in 1987 would have found the
2 2005-1104 following unilluminating definition: "1: escheated property 2 a: the reversion of lands in
English feudal law to the lord of the fee when there are no heirs capable of inheriting
under the original grant b: the reversion of property to the crown in England or to the
state in the U.S. when there are no legal heirs." Webster's Ninth New Collegiate
Dictionary at 424 (1985).
Nothing in the notice or in the definition of "escheat" makes clear to the recipient
the critical fact that the federal government will take her land without compensation. It is
the fact of noncompensation that gives rise to DuMarce's takings claim and is therefore
the relevant fact in determining when her cause of action accrued. It is arguable, in my
judgment, whether the government's notice to DuMarce was sufficient under any
"circumstances and conditions." It seems clear to me under the principles of Jones that
such a notice is insufficient where, as here, the relevant "circumstance and condition" is
the fiduciary relationship between the government and the recipient.
In Jones, the Supreme Court emphasizes that the amount and nature of notice
required by due process must take into account "unique information about an intended
recipient regardless of whether a statutory scheme is reasonably calculated to provide
notice in the ordinary case." Jones, 126 S. Ct. at 1716. A fiduciary relationship
between the government and the intended recipient certainly constitutes such "unique
information"—especially in light of other relationships that have been consistently held
to increase the government's notice obligations. Where, for example, the notice
recipient is a ward of the state (such as a prisoner), the government has been held to a
higher standard of notice. See, e.g., Weng v. United States, 137 F.3d 709 (2d Cir.
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United States Court of Appeals for the Federal Circuit
05-1104
HARVEY DUMARCE, KENNETH ERVIN DUMARCE, COLLEEN RENVILLE DUMARCE, PAMELA RENVILLE, and DENNIS L. DUMARCE, SR.,
Plaintiffs-Appellees,
v.
DIRK KEMPTHORNE, Secretary of the Interior, DEPARTMENT OF THE INTERIOR, and UNITED STATES,
Defendants-Appellants.
David P. Graham, Oppenheimer Wolff & Donnelly LLP, of Minneapolis, Minnesota, filed a petition for rehearing en banc for plaintiffs-appellees. With him on the petition was David A. Prange.
Kathryn E. Kovacs, Attorney, Appellate Section, Environment & Natural Resources Division, United States Department of Justice, of Washington, DC, filed a response to the petition for defendants-appellants. With her on the response was Sue Ellen Wooldridge, Assistant Attorney General.
Appealed from: United States District Court for the District of South Dakota
Judge Charles B. Kornmann United States Court of Appeals for the Federal Circuit 2005-1104
HARVEY DUMARCE, KENNETH ERVIN DUMARCE, COLLEEN RENVILLE DUMARCE, PAMELA RENVILLE, and DENNIS L. DUMARCE, SR.,
Plaintiffs-Appellees,
v.
DIRK KEMPTHORNE, Secretary of the Interior, DEPARTMENT OF THE INTERIOR, and UNITED STATES,
Defendants-Appellants.
ON PETITION FOR REHEARING EN BANC
Before MICHEL, Chief Judge, NEWMAN, MAYER, LOURIE, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE, Circuit Judges.
ORDER
A petition for rehearing en banc was filed by the Appellees, and a response
thereto was invited by the court and filed by the Appellants. The matter was referred
first as petition for panel rehearing to the panel that heard the appeal, and thereafter the
petition for rehearing en banc and response were referred to the circuit judges who are
authorized to request a poll whether to rehear the appeal en banc. A poll was
requested, taken, and failed.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petition for rehearing is denied.
(2) The petition for rehearing en banc is denied. (3) The mandate of the court will issue on October 11, 2006.
GAJARSA, Circuit Judge, dissents in a separate opinion, in which NEWMAN,
Circuit Judge, joins.
FOR THE COURT
_Oct 4_2006__ _s/Jan Horbaly___ Date Jan Horbaly Clerk
cc: David P. Graham, Esq. Kathryn E. Kovacs, Esq.
2005-1104 2 US COURT OF APPEALS FOR THE FEDERAL CIRCUIT
2005-1104
HARVEY DUMARCE, KENNETH ERVIN DUMARCE, COLLEEN RENVILLE DUMARCE, PAMELA RENVILLE, and DENNIS L. DUMARCE, SR.,
Plaintiffs-Appellees.
v.
P. LYNN SCARLETT, Acting Secretary of the Interior, DEPARTMENT OF THE INTERIOR, and UNITED STATES,
Defendants-Appellants.
GAJARSA, Circuit Judge, with whom Circuit Judge NEWMAN joins, dissents from the denial of en banc hearing.
I must dissent from the failure of this court to review this matter en banc. I
believe that the panel's decision reversing the district court's judgment in this case
merits reconsideration en banc in light of the Supreme Court's recent decision in Jones
v. Flowers, 126 S. Ct. 1708 (2006). The due process principles announced in Jones
suggest that the notice provided by the government to the plaintiffs in this case was
constitutionally inadequate. If the notice failed the requirements of due process, it
certainly also violated the government's fiduciary duty to inform DuMarce of all the facts
giving rise to her cause of action. Violation of that fiduciary duty, in turn, requires the equitable tolling of the statute of limitations. See Menominee Tribe of Indians v. United
States, 726 F.2d 718, 721 (Fed. Cir. 1984).
In Jones, the Supreme Court notes the long-settled principle that notice of a
deprivation "must be such as one desirous of actually informing" the recipient "might
reasonably adopt to accomplish it," and must take "due regard for the practicalities and
peculiarities" of the individual circumstances. Mullane v. Cent. Hanover Bank & Trust
Co., 339 U.S. 306, 315 (1950). Jones addresses whether one particular "circumstance
and condition"—knowledge by the state that its initial attempt to provide notice of a
property forfeiture has failed—acts to vary the constitutionally required notice. Jones,
126 S. Ct. at 1714. It holds that such knowledge does increase the notice due,
requiring the government to take enhanced measures to provide notice. Id. at
1718.
Dumarce's case, like Jones's, involves a property forfeiture. The question is
whether the notice provided to DuMarce was constitutionally adequate in light of the
"circumstances and conditions" in which it was delivered. I believe that it was not, and
that the principles of Jones required us to reconsider DuMarce's case en banc.
The government's notice to DuMarce in this case stated simply that "[p]art of [her
father's] land interests in the Sisseton Reservation are subject to Pub. L. 98-513 . . . . In
addition, if the decedent's interest in a parcel of land amounts to less than 2 ½ acres,
then such interest escheats to the Tribe. . . . Therefore, as set forth above, the
decedent's respective interests . . . shall escheat to the United States."
Few lay people would understand the drastic import of the legalism "escheat."
One enterprising enough to consult a common dictionary in 1987 would have found the
2 2005-1104 following unilluminating definition: "1: escheated property 2 a: the reversion of lands in
English feudal law to the lord of the fee when there are no heirs capable of inheriting
under the original grant b: the reversion of property to the crown in England or to the
state in the U.S. when there are no legal heirs." Webster's Ninth New Collegiate
Dictionary at 424 (1985).
Nothing in the notice or in the definition of "escheat" makes clear to the recipient
the critical fact that the federal government will take her land without compensation. It is
the fact of noncompensation that gives rise to DuMarce's takings claim and is therefore
the relevant fact in determining when her cause of action accrued. It is arguable, in my
judgment, whether the government's notice to DuMarce was sufficient under any
"circumstances and conditions." It seems clear to me under the principles of Jones that
such a notice is insufficient where, as here, the relevant "circumstance and condition" is
the fiduciary relationship between the government and the recipient.
In Jones, the Supreme Court emphasizes that the amount and nature of notice
required by due process must take into account "unique information about an intended
recipient regardless of whether a statutory scheme is reasonably calculated to provide
notice in the ordinary case." Jones, 126 S. Ct. at 1716. A fiduciary relationship
between the government and the intended recipient certainly constitutes such "unique
information"—especially in light of other relationships that have been consistently held
to increase the government's notice obligations. Where, for example, the notice
recipient is a ward of the state (such as a prisoner), the government has been held to a
higher standard of notice. See, e.g., Weng v. United States, 137 F.3d 709 (2d Cir.
1998) (holding that where the recipient is a federal prisoner, the government is required
3 2005-1104 to provide him with actual notice of a deprivation); United States v. Woodall, 12 F.3d
791, 794-95 (8th Cir. 1993) (same). It would be a strange result indeed if the
government's role as prison warden increases its duty to provide adequate notice, but
its role as trustee to Native Americans does not.
In short, I believe that the Supreme Court's decision in Jones requires us to
conclude that the notice of forfeiture provided to DuMarce was constitutionally
inadequate in the context of the "practicalities and peculiarities" of her situation—
namely, the government's fiduciary duty to her as trustee. Id. A notice that was even
arguably inadequate as a matter of minimum constitutional requirements could not
possibly satisfy the government's independent fiduciary duty to inform DuMarce of all
the facts giving rise to her cause of action. The government's failure to satisfy its
fiduciary duty renders DuMarce's ignorance of the relevant facts excusable, and acts to
toll the applicable statute of limitations. See Menominee Tribe of Indians, 726 F.2d at
721.
For these reasons, I believe the court should consider this matter en banc.
4 2005-1104