Shane v. United States

161 F.3d 723, 1998 WL 827658
CourtCourt of Appeals for the Federal Circuit
DecidedDecember 1, 1998
DocketNo. 97-5056
StatusPublished
Cited by10 cases

This text of 161 F.3d 723 (Shane v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shane v. United States, 161 F.3d 723, 1998 WL 827658 (Fed. Cir. 1998).

Opinion

LOURIE, Circuit Judge.

Leonard Shane and other former shareholders of Mercury Savings appeal from the decision of the United States Court of Federal Claims dismissing their breach of contract action against the United States for failure to file their claim within six years after then-claim first accrued as required by 28 U.S.C. § 2501 (1994). See Plaintiffs in Winstar-Related Cases v. United States, 37 Fed. Cl. 174 (1997). In Ariadne Financial Services Pty. Ltd. v. United States, 133 F.3d 874 (Fed.Cir.), cert. denied, — U.S. —, 119 S.Ct. 67, 142 L.Ed.2d 53 (1998), we affirmed the trial court’s dismissal of another plaintiffs claim. Because we conclude that the facts relating to Plaintiff-Appellants Shane et al. are materially indistinguishable from those in Ariadne, we affirm the court’s dismissal.

[725]*725BACKGROUND

Shane et al. are former shareholders in Mercury Savings and constitute several of the numerous plaintiffs involved in the Wms-tár series of cases. In United States v. Winstar Corp., 518 U.S. 839, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996), the Supreme Court affirmed a decision of this court holding the United States liable to three savings and loan institutions for breach of contract stemming from Congress’s enactment of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), Pub.L. No. 101-73, 103 Stat. 183 (1989) (codified as amended in various sections of 12 U.S.C.). The Court ruled that the United States had entered into contracts permitting the institutions to use particular accounting methods in their acquisition of certain failing savings and loan associations,1 that Congress’s adoption of new capital requirements in FIRREA abrogated the Government’s commitment, and that the Government was therefore liable in damages. See Winstar, 518 U.S. at 843, 116 S.Ct. 2432.

The three Winstar plaintiffs were thereafter joined by over 120 other claimants, including Shane and Ariadne, who similarly sought to recover contract damages from the United States under the Winstar holding. All Winstar-related, cases were made subject to special case-management procedures, pursuant to which the parties agreed to resolve certain common issues, including the issue raised here — the government’s statute of limitations defense. See 28 U.S.C. § 2501 (1994) (“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.”).

In Winstar-Related Cases, the Court of Federal Claims held that the Winstar plaintiffs’ claims accrued within the meaning of section 2501 either when' FIRREA’s implementing regulations put the new capital requirements into effect on December 7, 1989,2 or when the Office of Thrift Supervision (OTS) published a Thrift Bulletin on January 9, 1990, reminding thrifts that FIRREA eliminated previously granted forbearances and that it was applying FIRREA’s new capital standards to all thrifts, including those with forbearance agreements.3 See Winstar-Related Cases, 37 Fed. Cl. at 185. The court reasoned that the regulations themselves prohibited the thrifts from including millions of dollars worth of supervisory goodwill that their agreements expressly allowed them to include as capital. See id. The court rejected the government’s argument that the plaintiffs’ claims accrued when FIRREA was enacted on August 9,1989, see id. at 184; it also rejected the plaintiffs’ argument that their claims did not accrue until the government enforced FIRREA sanctions against the individual thrifts. See id. at 185. The court thus denied the government’s motion to dismiss the suits brought by those plaintiffs who filed claims within six years of the date of the regulatory enactment, but granted the motion to dismiss the suits brought by Shane and Ariadne, who filed suit more than six years after the publication date of the OTS bulletin.4

Both Ariadne and Shane appealed the dismissals to this court, but Shane’s appeal was stayed pending the outcome of Ariadne’s appeal. We affirmed the Court of Federal Claims’ decision to dismiss Ariadne’s suit. See Ariadne, 133 F.3d at 876. We found no clear error in the court’s determination that [726]*726Ariadne, as a stockholder in Southern California Savings & Loan (SoCal), the thrift at issue in that case, should have known that SoCal had lost the use of supervisory goodwill as an asset and that its claim had therefore accrued more than six years before Ariadne filed its breach of contract claim on April 16, 1996. See id. at 878. We noted that “SoCal itself was sufficiently certain that it had lost the use of supervisory goodwill that it filed a capital restoration plan on March 2, 1990.” Id. We held that the government’s liability was fixed when it refused to allow use of supervisory goodwill as it had promised, although we did not determine precisely which act — the enactment of the statutory prohibition on the use of supervisory goodwill, the promulgation of regulations enforcing this prohibition, or the issuance of a notice of intent to apply the regulations to thrifts (the Thrift Bulletin) — constituted the government’s repudiation and thus the critical date for statute of limitations purposes. See id. at 879-80. Nevertheless, we concluded that Ariadne knew or should have known through any of these three government actions that SoCal had lost its supervisory goodwill asset by the time SoCal submitted its OTS capital restoration plan on March 2, 1990. See id. at 880. Accordingly, because Ariadne filed suit more than six years after this date, we concluded that its suit was barred by 28 U.S.C. § 2501. See id. We lifted the stay of Shane’s appeal after the Ariadne decision issued and we now consider its merit. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) (1994).

DISCUSSION

Since we are bound by our precedent in Añadne, the only issue before us is whether that case controls the disposition of Shane’s appeal. Shane does not attempt to distinguish the circumstances of this case from those in Añadne. Instead, Shane et al. vigorously maintain that their claim did not accrue until the government rejected Mercury’s capital restoration plan on February 22, 1990, because until then any damages they suffered as shareholders were not "cognizable,” but speculative and therefore uncom-pensable.

The government submits that Añadne permits no result other than affirmance of the Court of Federal Claims’s dismissal of Shane’s claim because, regardless which of the three specific governmental acts constituted the breach of contract with Mercury Savings, Shane et al.

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Shane v. United States
161 F.3d 723 (Federal Circuit, 1998)

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161 F.3d 723, 1998 WL 827658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shane-v-united-states-cafc-1998.