            In the United States Court of Federal Claims
                                   No. 13-434 C

                               (Filed April 8, 2014)

                                UNPUBLISHED

 * * * * * * * * * * * * * * *         *
 U.S. HOME CORPORATION,                *
 BEECHWOOD AT EDISON, LLC,             *
 BEECHWOOD SHOPPING                    *    Contracts; 28 U.S.C. § 2501
 CENTER, LLC,                          *    (2012); 28 U.S.C. § 1500
                                       *    (2012); Claims That Were
                 Plaintiffs,           *    Dismissed Because They Were
                                       *    Barred by Section 1500 Are
            v.                         *    Now Barred, in a Second Suit,
                                       *    by the Statute of Limitations in
 THE UNITED STATES,                    *    Section 2501.
                                       *
                 Defendant.            *
 * * * * * * * * * * * * * * * *

      Brian S. Wolfson, Piscataway, NJ, for plaintiffs.

       Veronica N. Onyema, United States Department of Justice, with whom were
Stuart F. Delery, Assistant Attorney General, Bryant G. Snee, Acting Director,
Martin F. Hockey, Jr., Assistant Director, Washington, DC, for defendant.

                      ________________________________

                                  OPINION
                      ________________________________

Bush, Senior Judge.

      Before the court is defendant’s motion to dismiss filed under Rules 12(b)(1)
and 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC).
Plaintiffs’ suit, filed June 28, 2014, seeks money damages for the deleterious
effects of hazardous waste contamination of land sold by the United States to
plaintiffs or to their predecessors in interest. A similar suit was dismissed in 2012.1
See U.S. Home Corp. v. United States, 108 Fed. Cl. 191 (2012) (U.S. Home III),
aff’d, No. 2013-5059, 2014 WL 128616 (Fed. Cir. Jan. 15, 2014); see also U.S.
Home Corp. v. United States, No. 09-63C, 2010 WL 4689883 (Fed. Cl. Nov. 9,
2010) (U.S. Home II); U.S. Home Corp. v. United States, 92 Fed. Cl. 401 (2010)
(U.S. Home I). Defendant argues, and the court must agree, that the claims
presented here are time-barred and must be dismissed.

                                     BACKGROUND

I.     Facts

       Plaintiffs U.S. Home Corporation, Beechwood at Edison, LLC and
Beechwood Shopping Center, LLC (collectively, the Developers) are or were the
owners of approximately twenty-nine acres of real estate (the Property), which was
at one time part of the former Raritan Arsenal, a 3200-acre United States Army
facility in New Jersey. Compl. ¶ 3. One portion of the Property was conveyed
directly to the Developers by the General Services Administration; the other
portion was first sold to another private party and then conveyed to the Developers.
Id. ¶ 7. According to plaintiffs, hazardous waste contamination of the Property
was discovered in 2005 and 2006, and state officials compelled plaintiffs to alter
their development plans for the Property as a result. Id. ¶¶ 42-45, 47-49, 51, 54.
Plaintiffs assert that the Developers have incurred expenses and losses related to
the contamination of the Property, and seek an award of money damages in this
suit. Id. ¶¶ 58, 61, 63, 72-83.

II.    Procedure

      In 2008, two of the plaintiffs in this suit, U.S. Home Corporation and
Beechwood at Edison, LLC, filed a complaint against the United States in the
United States District Court for the District of New Jersey. U.S. Home Corp. v.

       1
         / The opinions issued in the earlier case provide a more complete factual background for
this dispute. Inasmuch as the court lacks jurisdiction over plaintiffs’ current suit because of a
statute of limitations issue, this opinion focuses primarily on the procedural history of the
controversy.

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United States, No. 2:08-cv-04144-WJM-MF (D.N.J. filed Aug. 15, 2008). The
district court plaintiffs sought relief from the United States for the consequences of
the contamination of the Property, relying on the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§
9601-9675 (2006), among other sources of law. A portion of the original district
court suit was dismissed without prejudice and was re-filed as a complaint in this
court on February 3, 2009. U.S. Home I, 92 Fed. Cl. at 404-05. The district court
suit was settled by the parties and was dismissed on July 20, 2010. Def.’s Mot. at
2; Pls.’ Opp. at 2.

      In this court, plaintiffs’ 2009 complaint, founded on a breach of deed
covenants as to the condition of the Property, was dismissed in 2012. The court
lacked jurisdiction over plaintiffs’ claims because they were filed while a suit
based on substantially the same operative facts was pending in the district court.
See 28 U.S.C. § 1500 (2012); U.S. Home III, 108 Fed. Cl. at 192. On June 28,
2013, approximately six months after the dismissal of their earlier suit, plaintiffs
returned to this court and filed similar claims in the subject matter.

                                    DISCUSSION

I.    Standard of Review

       When reviewing a complaint to determine its jurisdiction over a plaintiff’s
claims, this court must presume all undisputed factual allegations to be true and
construe all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416
U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457
U.S. 800, 814-15 (1982); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746,
747 (Fed. Cir. 1988) (citations omitted). However, plaintiffs bear the burden of
establishing subject matter jurisdiction, Alder Terrace, Inc. v. United States, 161
F.3d 1372, 1377 (Fed. Cir. 1998) (citing McNutt v. Gen. Motors Acceptance Corp.
of Ind., 298 U.S. 178, 189 (1936)), and must do so by a preponderance of the
evidence, Reynolds, 846 F.2d at 748 (citations omitted). If jurisdiction is found to
be lacking, this court must dismiss the action. RCFC 12(h)(3).

II.   Section 2501

      It is well-established that claims in this court must be brought within six
years of their accrual and that this time limit is jurisdictional. See, e.g., Young v.

                                            3
United States, 529 F.3d 1380, 1384 (Fed. Cir. 2008) (citing 28 U.S.C. § 2501
(2012) and John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-39
(2008)). “It is a plaintiff’s knowledge of the facts of the claim that determines the
accrual date.” Id. at 1385 (citations omitted); see Hopland Band of Pomo Indians
v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988) (“[A] cause of action
against the government has ‘first accrued’ only when all the events which fix the
government’s alleged liability have occurred and the plaintiff was or should have
been aware of their existence.” (citing Kinsey v. United States, 852 F.2d 556, 557
n.* (Fed. Cir. 1988))). Binding precedent holds that equitable tolling is not
available to extend the limitations period in section 2501. John R. Sand & Gravel,
552 U.S. at 133-34, 139.

III.   Analysis

        Plaintiffs do not allege that the complaint in this suit presents claims that are
different from those that were filed in the 2009 complaint and that were dismissed
pursuant to section 1500 in 2012. See Pls.’ Opp. at 4 (“Plaintiffs maintain that [the
procedural history of this controversy] allows for re-filing of the remaining count
[of the 2009 complaint] as [the Developers] have done.”). Plaintiffs also do not
dispute that the hazardous waste contamination of the Property was discovered no
later than August 2006. Def.’s Mot. at 8, Def.’s Reply at 2. Furthermore, plaintiffs
do not contend that their claims accrued later than August 2006. Because more
than six years have passed between August 2006, when plaintiffs’ claims accrued,
and the filing of their suit in June of 2013, plaintiffs’ suit is time-barred by section
2501.

       Plaintiffs’ only argument against dismissal is that equitable tolling should
save their suit.2 See Pls.’ Opp. at 4 (“The only issue that this Court should focus on
is whether an equitable remedy is available to Plaintiffs related to the statute of
limitations bar.”). Unfortunately for plaintiffs, this court cannot equitably toll the
statute of limitations for their benefit. John R. Sand & Gravel, 552 U.S. at 133-34,
139. It is true that the shift in precedent regarding section 1500 had not yet

       2
         / Plaintiffs also propose an “alternative” solution to the limitations problem: the court
could “allow the effective date of filing [the complaint in this case] to be July 21, 2010.” Pls.’
Opp. at 6. Plaintiffs fail to cite any authority, however, other than general principles of fairness
and equity, for this court to back-date a complaint by almost three years. In the court’s view,
this “alternative” solution, id., is simply another request for equitable tolling.

                                                  4
occurred when plaintiffs filed their earlier suit in this court, and that much of the
delay in re-filing the claims currently before the court is arguably attributable to
that change in precedent and not to any fault of plaintiffs. Nonetheless, the United
States Supreme Court has explicitly recognized that a statute of limitations may
result in the barring of a suit that has been re-filed in this court after the same
claims have been subject to a section 1500 dismissal. See United States v. Tohono
O’odham Nation, 131 S. Ct. 1723, 1731 (2011) (holding that section 1500 barred a
suit brought by the Tohono O’odham Nation in this court, and commenting that
“the Nation is free to [later] file suit again in the CFC if the statute of limitations is
no bar”) (emphasis added). Plaintiffs offer no authority, and the court is aware of
none, that permits them to escape the limitations provision of section 2501.3

                                      CONCLUSION

       Accordingly, it is hereby ORDERED that

       (1)    Defendant’s Motion to Dismiss, filed August 27, 2013, is
              GRANTED;

       (2)    The Clerk shall ENTER final judgment for defendant, DISMISSING
              the complaint for lack of subject matter jurisdiction, without
              prejudice; and

       (3)    No costs.

                                                    /s/Lynn J. Bush
                                                    LYNN J. BUSH
                                                    Senior Judge




       3
         / Defendant raises a number of other challenges to the claims in the complaint under
both RCFC 12(b)(1) and 12(b)(6). The court need not address these arguments because
plaintiffs’ claims are clearly barred by section 2501.

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