Kemp v. United States

65 Fed. Cl. 818, 2005 U.S. Claims LEXIS 164, 2005 WL 1415444
CourtUnited States Court of Federal Claims
DecidedJune 15, 2005
DocketNo. 04-65 L
StatusPublished
Cited by13 cases

This text of 65 Fed. Cl. 818 (Kemp v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kemp v. United States, 65 Fed. Cl. 818, 2005 U.S. Claims LEXIS 164, 2005 WL 1415444 (uscfc 2005).

Opinion

OPINION

HEWITT, Judge.

Before the court is Defendant’s Motion to Dismiss Plaintiffs Second Amended Complaint and Memorandum in Support Thereof (Def.’s Mot.), Plaintiffs Response in Opposition to Defendant’s Motion to Dismiss Plaintiffs Second Amended Complaint (Pl.’s Resp.) and Defendant’s Reply Brief in Support of Its Motion to Dismiss Plaintiff Second Amended Complaint (Def.’s Reply). For the following reasons, defendant’s motion is GRANTED.

I. Background

Plaintiff Jane Patience Kemp alleges that the United States effected a temporary taking of her property by a 1980 Act of Congress that expanded the boundaries of the Rocky Mountain National Park (RMNP). [Second] Amended Complaint (Compl.) ¶ 1. Pursuant to an Act of December 22, 1980, Pub.L. No. 96-560, § 111(a), 94 Stat. 3265 (1980), the United States increased the size of the National Park “by acquiring property that belonged to private property owners, including approximately 29.55 acres of private property owned by [p]laintiff.” Id. Plaintiff complains that the United States “use[d] [p]laintiffs property for public [purposes]” from December 1980 until December 1999 when “[p]laintiff sold the property to a private third party.” Id. ¶¶ 10-11. Plaintiff states that, during the nineteen years of property use by the United States, she and her mother, “her predecessor-in-interest[,] ... retained title to the property ... and paid taxes associated with the property.” Id. [818]*8181113.1 Plaintiff complains that she did not receive “any compensation” for the public use of her property. Id. ¶ 14.

Defendant has moved to dismiss plaintiffs second amended complaint. See Rule 12(b)(1) of the Court of Federal Claims (RCFC). Defendant argues that the court lacks jurisdiction to hear plaintiffs claim because the claim is time-barred. Def.’s Mot. at 1.

II. Discussion

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

1. Jurisdiction

The jurisdiction of the Court of Federal Claims is set forth in 28 U.S.C. § 1491, which states that “[t]he United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliq-uidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2000). The timeliness of an action also determines jurisdiction under 28 U.S.C. § 2501. See Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir.1998) (“burden of establishing jurisdiction, including jurisdictional timeliness, must be carried by [plaintiff in the underlying suit]”). “Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” 28 U.S.C. § 2501 (2000). Section 2501 imposes a limitation on the jurisdiction of the Court such that the court lacks jurisdiction to hear time-barred claims. See Alder Terrace, 161 F.3d at 1377. “The 6-year statute of limitations on actions against the United States is a jurisdictional requirement attached by Congress as a condition of the government’s waiver of sovereign immunity and, as such, must be strictly construed.” Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1576-77 (Fed.Cir.1988).

2. Standard of Review

Dismissal of a claim for lack of subject matter jurisdiction is governed by Rule 12(b)(1) of the Rules of the United States Court of Federal Claims. RCFC 12(b)(1). “The requirement that jurisdiction be established as a threshold matter ... is ‘inflexible and without exception.’” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884)). When considering a motion to dismiss for lack of jurisdiction, the court assumes that all well-pleaded facts alleged in the complaint are true and draws all reasonable inferences in favor of plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Boyle v. United States, 200 F.3d 1369, 1372 (Fed. Cir.2000) (grant of motion to dismiss requires reviewing court to “accept all well-pleaded factual allegations as true and draw all reasonable inferences in [plaintiffs] favor”); Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995) (in deciding motion to dismiss, court “obligated to assume all factual allegations to be true and to draw all reasonable inferences in plaintiffs favor”). Plaintiff bears the burden of proving, by a preponderance of the evidence, that the court has jurisdiction to hear an alleged claim. Toxgon Corp. v. BNFL, Inc., 312 F.3d 1379, 1383 (Fed.Cir.2002) (citing Harris v. Provident Life & Accident Ins. Co., 26 F.3d 930, 932 (9th Cir.1994) (“The burden of establishing federal jurisdiction falls on the party invoking [it].”)(quotations and citations omitted)); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (“[O]nce the [trial] court’s subject matter jurisdiction was put in question it [is] incumbent upon [plaintiff] to come forward with evidence establishing the court’s jurisdiction.”).

[819]*819The court is mindful that a takings claim is not to be dismissed without careful consideration of possible bases for relief. In particular the court agrees with plaintiff that:

“[although according to case law, the plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence, (citation omitted), a complaint should not be dismissed ‘unless it is beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief.’ ” [Bagwell v. United States, 21 Cl.Ct.] at 725, quoting Hamlet, 873 F.2d at 1416; see also Ewald v. United States, 14 Cl.Ct. 378, 382 (1988), quoting Juda v. United States, 6 Cl.Ct. 441, 450 (1984) (“Denial of a taking claim on the basis of the defense of limitations is warranted only when the facts alleged demonstrate conclusively that such a decision is required as a matter of law.”).

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Bluebook (online)
65 Fed. Cl. 818, 2005 U.S. Claims LEXIS 164, 2005 WL 1415444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kemp-v-united-states-uscfc-2005.