John R. Sand & Gravel v. United States..Claim Accrual

Even though the facts of this case below are tremendously complex, the Supreme Court wanted to hear the case not because of those facts but to help it clarify a word-distinction that it has only been making for about five years, a distinction that still is confusing to almost everyone. Let me state it right here and spend the rest of the essay trying to clarify it. The distinction which will be argued in this case is between a "juridictional" and a "claim-processing" rule. On its face the words really make no sense, and even after you read about them for a while, they make little more sense. But let me give you the facts of one case, decided by the Court in 2004, that clarify the issue--I hope.

The Issue in Kontrick v. Ryan, 540 US 443 (2004)

Kontrick was a bankruptcy case. Under the bankruptcy code, a creditor of someone who wants to discharge his debts in bankruptcy can object to the discharge, if objection comes within 60 days of the first meeting of creditors. In this case Ryan properly objected within that period, but didn't state fully the grounds for his objections. A few months later, he did so. When the objections were later considered by the bankrupty judge, Ryan's claim was upheld. Then, on appeal, Kontrick objected that Ryan hadn't made his claim within the 60 days prescribed by the statute. That is, even though Ryan may have filed an objection in a timely fashion, the real complaint didn't come within the required 60 days. When the case got to the US Supreme Court, the Court held that Ryan's later claims, outside the 60-day period were proper because Kontrick had waited too long to bring an objection. Whereas subject matter jurisdiction (i.e., the court's ability to hear a case) could be brought up at any time of proceedings, including appeal, objections to timeliness, in this case, only were appropriate when the claims were originally brought. Kontrack lost his rights to object to timeliness. So, the 60-day rule here is a "claim-processing" and not "jurisdictional" rule. The Court said:

"Clarity would be facilitated if courts and litigants used the label ‘jurisdictional’ not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority," 540 US at 455.

Thus, the distinction the Court wanted to make was between a jurisidictional rule, which always is appropriate to bring up while the litigation is ongoing at trial or appeal, and a claim-processing rule, which can nonetheless be forfeited if the party asserting the rule waits too long to raise the point.

The $64,000 question, then, is when you look at the conduct of various parties in cases, have they waived a rule that is waviable or have they only ignored a rule that goes to the jurisdiction of the court, and hence isn't waivable?

Getting to Our Case

But even my framing of the question is still too abstract. The point is this--when you are dealing with any change of terminology, which is what the Court is considering here, you have to go really, really slowly. So, let's look at the relevant facts for our case.

John R. is suing the federal government. Under the so-called Tucker Act, he has six years to do so from the time his cause of action "accrues." Well, let me give you the exact wording:

"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.

So, John R. has six years to sue from the time a claim accrues. In this case John R. leased 158 acres of land for a fifty-year period (began in 1969) from a private party in MI. His leased land was abutted by a land-fill which, you guessed it, buried all kinds of hazardous chemicals. Of course, since John R. dredged, and since his property abutted the land-fill, well, you see the scenario. There is a good chance that John R. will be digging into the water which has been contaminated by the land-fill to the north. Therefore, the EPA moved in on John R., beginning in the early 1990s. At times it fenced part of his leased property; at times it forbade him from working; at times it seemed just to bug him. This continued until about 2000. Finally, in 2002 John R. sued the federal government, alleging that his property had been illegally taken in violation of the 5th Amendment. He wanted cash.

Here is where the "time" issue and very unhelpful "jurisdictional" v. "claims-processing" language enters in. At the Court of Claims (the trial court), the Court held that even though John R. might now have a big lake to pee in on his property, he didn't have a corresponding pot, and so his claim was denied--under the 5h Amendment. The government had also raised the statute of limitations issue (that John R. brought his case more than six years after the cause of action accrued, but the court disagreed with the government) and found, at trial, that John R's claim accrued in May 1998).

So, John R. appealed. On appeal, both parties agreed that the claim accrued in May 1998, but the issue was solely, in their briefing, whether the lower court properly dismissed John R's Fifth Amendment takings claim. Yet, the Court of Appeals for the Federal Circuit, which hears Court of Claims appeals, decided that it wanted to raise the issue of time on its own (one of the amicus briefs had brought it up). So, the court, in a 2-1 decision, re-read the record and decided that, in fact, John R.'s cause of action accrued no later than 1994, when the EPA first built a fence around some of his property. Thus, bringing a case in 2002 was too late. Case dismissed. Oops.

The Issue in This Case--and Conclusion

Now the issue of timing should be coming into focus for you, I hope. Before the Supreme Court John R. is arguing that the appellate court's bringing up the time issue after both sides had acquiesced in a 1998 date was wrong because, drum roll, the six year period in sec. 2501 has to be "claim-processing" and not "jurisdictional." That is, once it has been waived, which the government did by admitting it as the accrual date on appeal, it no longer can be challenged or dealt with, even by the court. So, if John R. wins, I think the only thing he wins is a remand for the Court of Federal Appeals to consider his issue on the merits.

I think the Supreme Court will reverse the appellate court here. It is the kind of technical issue which a technician-laden Court likes to tinker with. They want to get everyone speaking "jurisdictional" and "claim-processing language." So far not all of us know the tune. Reversing the appellate court will make at least most of us not only learn the tune, but also the first and second stanzas...

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