          In the United States Court of Federal Claims
                                       No. 15-717C
                                (E-Filed: March 23, 2018)

                                           )
 CALLAN CAMPBELL, et al.,                  )
                                           )
                      Plaintiffs,          )      Motion for Reconsideration, RCFC 59;
                                           )      Motion for Leave to File an Amended
 v.                                        )      Complaint, RCFC 15(a);
                                           )      Reconsideration Denied; Futile
 THE UNITED STATES,                        )      Request to Amend Complaint Denied.
                                           )
                      Defendant.           )
                                           )

Steve Jakubowski, Chicago, IL, for plaintiffs. Robert M. Winter and Catherine A.
Cooke, Chicago, IL, of counsel.

John J. Todor, Senior Trial Counsel, with whom were Chad A. Readler, Acting Assistant
Attorney General, Robert E. Kirschman, Jr., Director, Franklin E. White, Jr., Assistant
Director, Commercial Litigation Branch, Civil Division, United States Department of
Justice, Washington, DC, for defendant.

                                        OPINION

CAMPBELL-SMITH, Judge.

        The court has before it plaintiffs’ combined motion for reconsideration, motion to
amend the judgment, and motion for leave to file a second amended complaint, ECF No.
35, which is brought pursuant to Rules 59 and 15(a) of the Rules of the United States
Court of Federal Claims (RCFC). The motion has been fully briefed. See Def.’s Resp.,
ECF No. 37; Pls.’ Corrected Reply, ECF No. 39. For the reasons set forth below,
plaintiffs’ motion is DENIED.

I.     Procedural Background

       Plaintiffs now rely on a proposed Second Amended Class Action Complaint, ECF
No. 35-1, to clarify their claims and to add additional factual allegations which, in their
view, justify reconsideration of the dismissal of their claims by this court, see ECF No.
35 at 6 (stating that the proposed Second Amended Complaint “clarifie[s]” the claim
accrual issue in this case), 7 (noting the “additional jurisdictional facts contained in the
Second Amended Complaint”), 10 (referencing the facts that “the Second Amended
Complaint now establishes”), 13 (relying on the “new jurisdictional facts ple[]d in the
Second Amended Complaint”), 14 (stating that the Second Amended Complaint will
remedy “a lack of adequate factual exposition”); see also ECF No. 39 at 5
(acknowledging plaintiffs’ prior “lack of precision in alleging [their] takings claims”).
The court observes that not only does the proposed Second Amended Complaint supply
additional allegations of fact, it also reshapes the description of plaintiffs’ takings claims
and the facts already alleged. For the court’s consideration of plaintiffs’ motion for
reconsideration, the court relies, in part, on the allegations contained in plaintiffs’
proposed Second Amended Complaint, but also relies on prior representations to this
court found in the First Amended Class Action Complaint, ECF No. 4, and the briefs that
plaintiffs have filed during the course of this litigation.

        Familiarity with the court’s opinion that is the subject of plaintiffs’ motion,
Campbell v. United States, 134 Fed. Cl. 764 (2017) (Campbell), is presumed. The
overall issue presented in the three complaints proffered by the plaintiffs in this suit is
whether the government’s specific conditions placed on its financial bail-out of General
Motors Corporation constituted a taking of these plaintiffs’ personal injury claims.
Plaintiffs’ personal injury suits filed against Old GM were greatly affected by the General
Motors bankruptcy in 2009. Id. at 767-68. Further, in the GM bankruptcy proceedings
plaintiffs’ opportunity to bring successor liability suits against New GM were
extinguished. Id. at 772-73, 775.

        This case was dismissed for lack of subject matter jurisdiction because the original
complaint was not filed within six years of claim accrual. Id. at 773. The court found
that the “coercive” government action that was alleged to have caused the taking of
plaintiffs’ successor liability claims could not have extended past the date when the
bankruptcy court issued its Sale Order on July 5, 2009. Id. Because plaintiffs’ suit was
filed on July 9, 2015, more than six years later, it was untimely filed under 28 U.S.C.
§ 2501 (2012).

       In the alternative, the court held that plaintiffs’ claims would necessarily have
been dismissed for failure to state a claim upon which relief may be granted. Campbell,
134 Fed. Cl. at 779. The only property right asserted by plaintiffs to have been taken was
a highly contingent right to bring successor liability claims that “was not a cognizable
property interest under the Takings Clause.” Id. Thus, even if plaintiffs’ claims had been
timely filed, the complaint would have been dismissed, in any event, for failure to state a
plausible takings claim. Id. at 774, 779.

II.    Standard of Review for Motions Brought under RCFC 59

       Pursuant to the rules of this court, a plaintiff may be granted reconsideration of the
court’s disposition of a case “for any reason for which a new trial has heretofore been


                                              2
granted in an action at law in federal court [or] for any reason for which a rehearing has
heretofore been granted in a suit in equity in federal court.” RCFC 59(a)(1)(A)-(B).
“The decision whether to grant reconsideration lies largely within the discretion of the
[trial] court.” Yuba Natural Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir.
1990) (citations omitted). The motion for reconsideration “must be based on a manifest
error of law or mistake of fact and must show either: (1) that an intervening change in
the controlling law has occurred; (2) that previously unavailable evidence is now
available; or (3) that the motion is necessary to prevent manifest injustice.” First Fed.
Lincoln Bank v. United States, 60 Fed. Cl. 501, 502 (2004) (citations omitted).

III.   Standard of Review for Motions Brought under RCFC 15(a)(2)

        Plaintiffs’ motion is also brought under RCFC 15(a)(2), which states that “[t]he
court should freely give leave [to amend a pleading] when justice so requires.” Id. Leave
to amend a pleading should not be granted, however, when the proposed amendment
would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). Amendment of a complaint
to present claims outside of this court’s jurisdiction would be futile. E.g., Marchena v.
United States, 128 Fed. Cl. 326, 332 (2016), aff’d, 702 F. App’x 988 (Fed. Cir. 2017)
(table); Ishler v. United States, 115 Fed. Cl. 530, 541 (2014); Van Vorst v. United States,
85 Fed. Cl. 227, 233 (2008); Emerald Coast Finest Produce Co. v. United States, 76 Fed.
Cl. 445, 452 (2007); Saladino v. United States, 62 Fed. Cl. 782, 795 (2004).

         In addition, when the proposed amended complaint fails to state a claim upon
which relief may be granted, the court should deny the motion to amend as futile. E.g.,
Leider v. United States, 301 F.3d 1290, 1299 n.10 (Fed. Cir. 2002); Mitsui Foods, Inc. v.
United States, 867 F.2d 1401, 1404 & n.4 (Fed. Cir. 1989) (citing Foman, 371 U.S. at
182); Marchena, 128 Fed. Cl. at 334. The appropriate test for futility, when there is a
question as to whether the proposed amended complaint states a claim upon which relief
may be granted, is the plausibility test delineated by the Supreme Court in Ashcroft v.
Iqbal, 556 U.S. 662 (2009) (Iqbal) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007) (Twombly). E.g., A & D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1159
(Fed. Cir. 2014); Marchena, 128 Fed. Cl. at 333. Under this test, the allegations of the
proposed amended complaint must state a plausible claim for relief. See, e.g., Iqbal, 556
U.S. at 678 (“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”) (quoting
Twombly, 550 U.S. at 570).

IV.    Discussion

       A.     Claim Accrual

       Plaintiffs’ briefs do not argue that the Campbell opinion contained factual errors
regarding the chronology of events relevant to claim accrual. Nor do plaintiffs dispute


                                               3
this court’s finding that the type of “taking” at issue in their claims is the alleged coercion
of third parties by the federal government during the GM bankruptcy. Instead, plaintiffs
contend that the court’s legal analysis of the claim accrual question was flawed due to an
incomplete presentation of facts in the First Amended Complaint, and because the court’s
analytical framework was incorrect.

        The court has carefully considered the new allegations of fact in the proposed
Second Amended Complaint, as well as plaintiffs’ arguments based on those factual
allegations and takings jurisprudence, and finds no reason to conclude that plaintiffs’
takings claims accrued on July 9 or July 10, 2009, rather than on July 5, 2009. Once the
bankruptcy court entered the Sale Order on July 5, 2009, any alleged government
coercion of third parties, as “coercion” is defined in this context by A & D Auto, 748
F.3d at 1153-56, ceased. The court turns to the principal arguments presented by
plaintiffs on the topic of claim accrual.1

              1.   July 10, 2009 363 Sale Closing Date Proposed as the Accrual Date

        As previously asserted in their First Amended Complaint, ECF No. 4 at 39,
plaintiffs aver that their takings claims accrued on July 10, 2009, the closing date of the
363 Sale which conveyed many of Old GM’s assets to New GM, ECF No. 35 at 9-12.2
In support of this accrual date, plaintiffs argue, first, that precedential takings cases
require that the government exert “effective control” over property before a taking can
occur and the related takings claim can accrue. Plaintiffs rely on Cuban Truck &
Equipment Co. v. United States, 333 F.2d 873, 878 (Ct. Cl. 1964), and Turney v. United
States, 126 Ct. Cl. 202, 214 (1953), for this proposition. ECF No. 35 at 10-11; ECF No.
39 at 12-13. Both of these cases involved physical property (trucks or radar equipment)
over which the United States military exercised some amount of physical control. The
accrual of the takings claims in Cuban Truck and Turney is not at all analogous to the
accrual of plaintiffs’ takings claims based on the government’s alleged, non-physical


1
        The court has considered all of plaintiffs’ arguments but limits its discussion here
to the most substantial arguments raised in plaintiffs’ briefs. Although plaintiffs rely, in
part, on decisions issued by this court to establish precedent, the court’s focus here is
primarily on authorities which provide binding precedent. See, e.g., W. Coast Gen. Corp.
v. Dalton, 39 F.3d 312, 315 (Fed. Cir. 1994) (“Court of Federal Claims decisions, while
persuasive, do not set binding precedent for separate and distinct cases in that court.”)
(citations omitted).
2
       As explained in Campbell, in a “363 sale” under 11 U.S.C. § 363(b), (f) (2012),
“the acquiring entity may, if certain conditions are met, obtain particular assets from the
bankruptcy petitioner and, at the same time, avoid some of the liabilities of the
petitioner.” 134 Fed. Cl. at 768.


                                              4
coercion of third parties; the holdings in those two cases in no way militate for an accrual
date of July 10, 2009, for plaintiffs’ takings claims in this case.

        Plaintiffs next turn, ECF No. 35 at 10-12; ECF No. 39 at 12, to the Dickinson line
of cases, where the accrual of a takings claim may be “postponed” if the “damages from
[the] taking only gradually emerge.” Nw. LA Fish & Game Pres. Comm’n v. United
States, 446 F.3d 1285, 1290-91 (Fed. Cir. 2006) (citing United States v. Dickinson, 331
U.S. 745, 749 (1947)). According to the United States Court of Appeals for the Federal
Circuit, this claim accrual rule applies in cases where the taking is effected by
“continuous physical processes.” Id. at 1291 (citing Applegate v. United States, 25 F.3d
1579, 1582 (Fed. Cir. 1994)). This accrual rule is often referred to as the stabilization
doctrine. Id. at 1290-91. Because plaintiffs here allege a taking that does not involve a
continuous physical process, the stabilization doctrine, and the cases cited by plaintiff
that follow Dickinson, have no applicability to the accrual of their takings claims.

              2.     July 9, 2009 Stay Denial Date Proposed as the Accrual Date

       Plaintiffs also contend that their takings claims accrued no earlier than July 9,
2009, when the emergency motion for a stay pending appeal -- filed by the “Asbestos”
claimants in the GM bankruptcy -- was denied by the district court. ECF No. 35 at
12-14; ECF No. 35-1 at 41; see also In re Motors Liquidation Co., 428 B.R. 43, 51
(S.D.N.Y. 2010) (giving the history of the Campbell and Asbestos claimants’ efforts to
challenge the extinguishment of their successor liability claims against New GM before
the 363 Sale closed on July 10, 2009). In broad strokes, plaintiffs argue that because the
July 5, 2009 Sale Order was not effective until July 9, 2009, and because the government
defended against attempts to stay the Sale Order and the 363 Sale through July 9, 2009,
government coercion of third parties did not cease on July 5, 2009 -- contrary to the
court’s holding in Campbell. ECF No. 35 at 12-14. Plaintiffs’ arguments are not
persuasive.

       The court begins with the “effective date” argument. The court, when it issued
Campbell, was not unaware of the fact that the Sale Order that issued on July 5, 2009,
included a provision citing July 9, 2009, as the effective date. Indeed, the effective date
of the Sale Order was highlighted by the bankruptcy court as a modification of the draft
Sale Order proposed by Old GM. See ECF No. 4-1 at 48; ECF No. 4-2 at 95 n.143. As
the bankruptcy court observed, the four-day period between July 5, 2009, and July 9,
2009, was specifically designed to provide a (limited) opportunity for appellate review of
the Sale Order. ECF No. 4-2 at 95 n.143. As this court noted in its prior opinion, a
variety of challenges to the Sale Order were filed during this time-frame. Campbell, 134
Fed. Cl. at 770. None of these challenges prevented the Sale Order from becoming final
on July 9, 2009, or prevented the 363 Sale from closing on July 10, 2009.

     Even when the factual allegations presented in the proposed Second Amended
Complaint are taken into account, the four-day window of time provided for appellate


                                             5
review in the Sale Order is not an indication that government coercion of Old GM and the
bankruptcy court extended past July 5, 2009.3 The court continues to view the entry of
the Sale Order on July 5, 2009, as the actualization of the government’s efforts to
extinguish plaintiffs’ successor liability claims as a condition of the 363 Sale, and as the
accrual date for plaintiffs’ takings claims. Plaintiffs’ revisions to the First Amended
Complaint cannot alter the true nature of plaintiffs’ takings claims. See, e.g., James v.
Caldera, 159 F.3d 573, 579 (Fed. Cir. 1998) (stating that the jurisdictional inquiry “does
not end with the words of the complaint, however instructive they may be, for [the court]
still must ‘look to the true nature of the action in determining the existence or not of
jurisdiction’” (quoting Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994))).

        Pursuant to A & D Auto, the government may be liable for a taking when its
coercive actions “condition” government financing on the extinguishment of legal rights,
and when the company’s survival depends on its acceptance of that financing with those
conditions. 748 F.3d at 1154. The coercion alleged in all of plaintiffs’ complaints, no
matter how phrased, is bounded by this precedent. The only government actions which
conform to the A & D Auto coercion scenario are those in which Old GM and the
bankruptcy court were coerced into structuring the 363 Sale so that plaintiffs’ successor
liability claims were extinguished. Those allegedly “coercive” actions terminated, at the
latest, on July 5, 2009.

        Plaintiffs also rely on the litigation of claims in the GM bankruptcy between July
5, 2009, and July 9, 2009, as evidence of coercive conduct extending beyond July 5,
2009. In their proposed Second Amended Complaint plaintiffs allege a multitude of facts
that show, perhaps, that the extinguishment of their successor liability claims remained a
live issue in Congress and, in particular, before the district court through July 9, 2009.4
ECF No. 35-1 at 37-41. To characterize the government actions that took place in these
settings as continued coercion of the type described in A & D Auto is erroneous. What
plaintiffs describe in these paragraphs of their proposed Second Amended Complaint is


3
       Plaintiffs have added the district court as another named target of the government
coercion that effected the takings alleged in the proposed Second Amended Complaint.
ECF No. 35-1 at 8-9, 37, 39-41. The court notes this allegation, but does not view the
government’s actions vis-à-vis the district court to constitute coercion. See infra.
4
       The court notes that plaintiffs’ only challenge to the Sale Order filed during this
four-day period -- asserted as a request for a direct appeal to the United States Court of
Appeals for the Second Circuit -- was denied by the bankruptcy court on July 7, 2009. In
re Motors Liquidation Co., 428 B.R. at 50-51 & n.9. The date July 7, 2009, like July 5,
2009, is outside this court’s six-year limitations period. Plaintiffs rely on a challenge to
the Sale Order filed by the Asbestos claimants on July 8, 2009, to further delay the
accrual of their own claims beyond July 7, 2009. ECF No. 35-1 at 39.


                                             6
merely a four-day episode in the ongoing participation of the United States in the long-
lived GM bankruptcy proceedings.

       As the court noted in Campbell, that litigation has not yet concluded. 134 Fed. Cl.
at 770 (citation omitted); see also In re Motors Liquidation Co., No. 09-50026 (MG),
2018 WL 491783 (Bankr. S.D.N.Y. Jan. 18, 2018). Plaintiffs cannot depend on the
government’s participation in the GM bankruptcy as a perpetual claim accrual-delaying
mechanism. Any coercive activity by the United States that would fit within the
analytical framework provided by A & D Auto terminated, at the latest, on July 5, 2009.

              3.      Plaintiffs’ Challenge to the Court’s Analytical Framework for Claim
                      Accrual

       Plaintiffs also contend that the court’s analytical framework for its claim accrual
ruling was flawed. In particular, plaintiffs suggest that neither Branch v. United States,
69 F.3d 1571 (Fed. Cir. 1995), nor Acceptance Insurance Cos. v. United States, 583 F.3d
849 (Fed. Cir. 2009) (Acceptance), was correctly applied in Campbell. ECF No. 35 at
12; ECF No. 39 at 11-12. Plaintiffs’ argument regarding these two cases is cursory, is
unsupported by citation to any cases which discuss Branch or Acceptance, and fails to
persuade. The court finds nothing in plaintiffs’ discussion of Branch or Acceptance that
invalidates the analytical framework for claim accrual that was set forth in Campbell.

        In their reply brief, plaintiffs attempt to buttress their attack on the court’s reading
of Branch and Acceptance by citing to a wide range of takings jurisprudence. Curiously,
plaintiffs ignore three precedential cases cited by the government in its response brief.
See ECF No. 37 at 11-12 (citing Goodrich v. United States, 434 F.3d 1329 (Fed. Cir.
2006); Fallini v. United States, 56 F.3d 1378 (Fed. Cir. 1995); All. of Descendants of
Tex. Land Grants v. United States, 37 F.3d 1478 (Fed. Cir. 1994)). These cases were
specifically offered in support of the court’s claim accrual analysis, and of the court’s
ruling that plaintiffs’ takings claims accrued on July 5, 2009. Id.

        Rather than address the binding precedent of these cases and defendant’s reliance
on this precedent, plaintiffs largely focus in their reply brief on one of this court’s
decisions cited by defendant, and then draw the court’s attention to a number of
precedential takings cases. Whether all of plaintiffs’ arguments are properly within the
scope of a reply brief to which the government has not had a chance to respond is
questionable. See, e.g., Arakaki v. United States, 62 Fed. Cl. 244, 246 n.9 (2004) (“The
court will not consider arguments that were presented for the first time in a reply brief or
after briefing was complete.” (citing Novosteel SA v. United States, 284 F.3d 1261, 1274
(Fed. Cir. 2002); Cubic Def. Sys., Inc. v. United States, 45 Fed. Cl. 450, 467 (1999))).




                                               7
Nonetheless, even if all of plaintiffs’ claim accrual arguments in their reply brief are
properly before the court, they are unpersuasive.5

         Plaintiffs first explore the topic of claim accrual through two decisions discussing
bank failures. See ECF No. 39 at 6-9 (citing Ariadne Fin. Servs. Prop. Ltd. v. United
States, 133 F.3d 874 (Fed. Cir. 1998); Plaintiffs in Winstar-Related Cases, 37 Fed. Cl.
174 (1997) (subsequent history omitted)). According to plaintiffs, Ariadne stands for the
proposition that a takings claim accrues when the property owner is “‘sufficiently
convinced’” that its property has been taken by the government. Id. at 8 (quoting
Ariadne, 133 F.3d at 880). The claim accrual ruling in Campbell is in no way
undermined by this proposition. By July 5, 2009, plaintiffs were “sufficiently convinced”
by the issuance of the Sale Order that allegedly coercive acts of the government had
resulted in a Sale Order that explicitly extinguished their successor liability claims.

        Plaintiffs then attempt to find support for their attack on the court’s claim accrual
analysis by referencing Palazzolo v. Rhode Island, 533 U.S. 606 (2001). ECF No. 39 at
9. The court finds no parallel between the administrative exhaustion requirement stated
in Palazzolo, 533 U.S. at 620-21, and the timing in this case of the alleged coercion by
the federal government of Old GM and the bankruptcy court. For this reason, plaintiffs’
citation to Palazzolo does not undermine the court’s reliance on Branch and Acceptance
for its claim accrual analysis.

        Finally, plaintiffs turn to Smith v. United States, 709 F.3d 1114 (Fed. Cir. 2013).
ECF No. 39 at 10-11. The statute of limitations issue in Smith was predicated on three
judicial takings, i.e., the issuance of orders by three distinct courts that disbarred the
appellant. 709 F.3d at 1116. Giving the Smith opinion the reading most favorable to
plaintiffs here, the Federal Circuit held that a judicial taking occurs, and the plaintiff’s
takings claim accrues, when the final judicial order, such as a disbarment order, is issued.
Id. at 1117. Unlike Smith, however, this case does not involve an allegation of a judicial
taking. Thus, any “final order” rule that might be discerned in Smith does not contradict
the court’s claim accrual analysis in Campbell. 6




5
       The court limits its consideration to binding precedent cited by plaintiffs, see supra
note 1, and does not revisit arguments that the court has addressed in earlier sections of
this opinion.
6
       The claim accrual question in Smith did not focus on the difference between an
order that was not final and a final order. Instead, the Federal Circuit weighed the
appellant’s arguments that: (1) accrual occurred only once the United States Supreme
Court issued its judicial takings decision in Stop the Beach Renourishment, Inc. v.
Florida Department of Environmental Protection, 560 U.S. 702 (2010); and (2) accrual of

                                              8
              4.      Claim Accrual Summary

        The court has reviewed all of plaintiffs’ arguments challenging the court’s
dismissal of their takings claims on timeliness grounds. The alternative accrual dates set
forth in the proposed Second Amended Complaint and plaintiffs’ briefs are not
well-founded. Nor have plaintiffs shown any legal error in the analytical framework
employed by the court in Campbell. Because the court’s claim accrual ruling in
Campbell does not evince legal error, any mistake of fact, or a manifest injustice,
plaintiffs’ motion for the reconsideration of the court’s RCFC 12(b)(1) dismissal of their
claims must be denied.

       B.     Property Interest

        Plaintiffs also contend that the court erred when it found that plaintiffs’ complaint
did not present a plausible takings claim. Plaintiffs’ arguments in this regard are rather
amorphous and difficult to categorize. Three distinct topics emerge from plaintiffs’
briefs, however.

       First, plaintiffs urge the court to accept, as their last word on this subject, a
finalized definition of the property interest taken by the government during the GM
bankruptcy proceedings. ECF No. 35 at 14. Second, plaintiffs attempt to convince the
court that their property interests were not “highly contingent.” Id. at 7, 14-15; ECF No.
39 at 13. Third, plaintiffs suggest that the property right which was taken by the
government “‘inhered’ in Plaintiffs” long before the government began its interventions
in the GM bankruptcy proceedings. ECF No. 35 at 15.

        The court will address each of these topics in turn. As a threshold matter,
however, the court notes that plaintiffs’ challenge to the court’s RCFC 12(b)(6) ruling in
Campbell rests largely on an attempt to reframe the legal right that was allegedly taken
by the United States, and to convince the court that this legal right is more substantial
than the court believed. Although this reframing of plaintiffs’ claims is superficially
supported by attorney argument, the undisputed facts of the GM bankruptcy ultimately
determine the plausibility of plaintiffs’ takings claims. See, e.g., Iqbal, 556 U.S. at 678
(stating that “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions”); Papasan v. Allain, 478 U.S. 265, 286
(1986) (“[W]e are not bound to accept as true a legal conclusion couched as a factual
allegation.”) (citations omitted). Here, to put it bluntly, the pen is not mightier than the
well-established facts of this case. See Campbell, 134 Fed. Cl. at 770-71 (noting that the
background facts of this case are well-established). The particular articulation of



new judicial takings claims took place when the attorney’s appeals of the courts’
disbarment orders were rejected. Smith, 709 F.3d at 1116-17.


                                               9
plaintiffs’ property interest proffered by plaintiffs in their briefing is of far less
importance than the facts underlying their takings claims.

               1.     Finalized Definition of Plaintiffs’ Property Interest

        The court thoroughly examined the nature of plaintiffs’ property interest in
Campbell, and noted that plaintiffs’ description of that property interest was not always
consistent. 134 Fed. Cl. at 767-69, 774-76 & n.11. The court found that the most
accurate, and, indeed, the only possible property interest that could have been taken from
plaintiffs by the government in the GM bankruptcy was embodied in plaintiffs’ “‘rights
to assert successor liability claims against New GM.’” Id. at 774 (quoting ECF No. 4 at
5). The court specifically held that no other property interest would satisfy the analytical
framework for a coercive taking, citing A & D Auto, 748 F.3d at 1152-53. Campbell,
134 Fed. Cl. at 775.

        Plaintiffs now seek to define their property interest differently. First, they cite to
“their last brief,” ECF No. 32, which included the following definition of plaintiffs’
property interest:

       Plaintiffs’ legally-protected interest is their right to compensation -- from any
       source -- for personal injuries caused by product defects in cars manufactured
       by Old GM.

Campbell, 134 Fed. Cl. at 775 (quoting ECF No. 32 at 8). Second, plaintiffs elaborate on
this preferred description of their property interest, as follows:

       Plaintiffs’ essential view, as expressed in [their] last brief, was that a “cause
       of action” can be a cognizable property interest under the Takings Clause
       when it protects their right to compensation for bodily injuries caused by
       defective cars manufactured by Old GM.

ECF No. 35 at 14. The court is confessedly at a loss to discern the finalized definition
that plaintiffs propose for the property interest taken by the United States in the GM
bankruptcy. In any case, plaintiffs’ legal conclusion as to the nature of their property
interest does not control here.

       It is abundantly clear that before the GM bankruptcy, plaintiffs possessed personal
injury claims against Old GM, and potential successor liability claims against a successor
company, should one be created. As of the entry of the Sale Order, the property interest
that was subtracted from plaintiffs’ potential and existing rights was the right to bring
successor liability claims against New GM. The description of this property interest in
the First Amended Complaint, ECF No. 4 at 5, is the only accurate statement of the
property interest that is at issue in this suit. For this reason, the court does not defer to


                                               10
any legal conclusion that might be discerned in plaintiffs’ motion for reconsideration
regarding the finalized definition of their property interest.7

              2.      Highly Contingent Property Interest

       Plaintiffs next argue that the court erred in finding that their property interest was
highly contingent and, thus, not cognizable under the Takings Clause. ECF No. 35 at 14-
17. In support of this assertion, plaintiffs point to additional factual allegations in the
proposed Second Amended Complaint. ECF No. 39 at 13 (citing to ECF No. 35-1 at 4-6,
22-23). Plaintiffs also contend that Campbell “misplaces reliance” on Acceptance and
that Acceptance is distinguishable from this case. ECF No. 35 at 16-17. Plaintiffs’
argument, sometimes framed as a contention that the United States lacked discretion to
not rescue Old GM, ECF No. 35 at 14, 17; ECF No. 39 at 13, is not persuasive.

        In their motion for reconsideration, plaintiffs failed to point to any specific facts in
their proposed Second Amended Complaint which indicated that the United States lacked
discretion to abstain from a rescue of Old GM. Defendant responded that the government
reviewed several new allegations of fact in the proposed Second Amended Complaint and
found no new evidence that the United States lacked discretion to intervene in Old GM’s
financial crisis. See ECF No. 37 at 15 (“Plaintiffs’ proposed ‘jurisdictional facts’ simply
restate, in conclusory fashion, their position that the Government did not have discretion
in whether to provide rescue financing to GM during the financial crisis.”), 17 (“Nothing
in plaintiffs’ proposed second amended complaint points to new evidence in support of
their conclusion that the Government lacked discretion in whether to provide rescue
financing to GM; instead, they simply repeat their positions that the Government had no
choice but to exercise its discretion to do so.”). Defendant concluded that these
conclusory statements of fact did not contradict the court’s finding that the government’s
intervention was discretionary. Id. at 17-18.

       Plaintiffs’ reply brief specifically identifies the new allegations of fact in the
proposed Second Amended Complaint which, in their view, establish that the government
lacked discretion to abstain from an intervention in Old GM’s financial crisis.8 ECF No.


7
       Plaintiffs’ proposed Second Amended Complaint, like the First Amended
Complaint, continues to describe plaintiffs’ property interest as their right to bring
successor liability claims against New GM. See ECF No. 35-1 at 2-3, 7-9, 11-16, 20,
31-33, 35-38, 41-44, 46-59.
8
        Because the specific paragraphs relied upon by plaintiffs were not identified until
plaintiffs filed their reply brief, the government was not afforded a reasonable
opportunity to respond to this particular argument. The proposed Second Amended
Complaint contains 245 paragraphs, of which approximately 65 are new or substantially

                                              11
39 at 13 (citing ECF No. 35-1 ¶¶ 6-8, 10-14, 75-76). As the court reads the first three
paragraphs cited by plaintiffs, federal authorities are alleged to have had strong, if not
irresistible, motivation to intervene in Old GM’s financial crisis. ECF No. 35-1 ¶¶ 6-8.
The next five paragraphs cited by plaintiffs allege that a 363 sale, largely funded by the
United States Treasury, was the only alternative to a disastrous liquidation of Old GM.
Id. ¶¶ 10-14. The last two paragraphs cited by plaintiffs allege that the federal
government never seriously considered that liquidation of Old GM could be permitted,
because Old GM was too important to the nation’s economy. Id. ¶¶ 75-76.

       Thus, the proposed Second Amended Complaint contains additional factual
allegations which must be accorded all favorable inferences due plaintiffs. See Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v.
Fitzgerald, 457 U.S. 800 (1982). These factual allegations support the view that the
United States had little choice but to rescue Old GM. Plaintiffs’ legal conclusion,
however, that the United States lacked discretion in its decision to fund the 363 Sale and
to create New GM is not entitled to favorable inferences, however. E.g., Iqbal, 556 U.S.
at 678; Papasan, 478 U.S. at 286. Until the Sale Order was entered by the bankruptcy
court on July 5, 2009, the United States possessed considerable discretion over its
intervention in the GM bankruptcy and the structure and conditions of the 363 Sale. This
legal conclusion is supported by numerous factual allegations in plaintiffs’ proposed
Second Amended Complaint, as well as in the recitation of facts in the decisions of the
bankruptcy court and the district court.

       Even if the United States Department of the Treasury had no feasible options other
than injecting massive funding into GM and structuring a bankruptcy solution that would
keep GM largely intact, it is clear that Treasury exercised discretion at every step of this
process. As noted in Campbell, by the time that Old GM filed for bankruptcy, the United
States had overpowering leverage over Old GM due to the government’s infusions of
cash into the company. 134 Fed. Cl. at 768. Old GM’s board, as a consequence, acceded
to every demand of the United States regarding the content of its bankruptcy filings,
including the company’s request for a 363 sale and the proposed terms of the Sale Order.
See ECF No. 35-1 at 18-34. As the GM bankruptcy moved forward, the United States
effectively controlled the timing of the 363 Sale. Id. at 37-41. The government also
threatened to let Old GM fail if the government’s requirements for the timely conclusion
of the 363 Sale were not met. Id. at 37-40.

       Given this factual background, the court does not find that the United States
lacked discretion regarding the rescue of Old GM. The bankruptcy court considered and
gave credence to the government’s representations that it would not continue to fund Old

modified paragraphs. See ECF No. 35-2 (red-line version of proposed Second Amended
Complaint).


                                             12
GM unless the 363 Sale went through as specified and as scheduled. Sale Opinion, ECF
No. 4-2 at 30-31. The district court commented that the extinguishment of plaintiffs’
successor liability claims in the Sale Order was a key element of the 363 Sale insisted
upon by Old GM and the other parties to the GM bankruptcy. In re Motors Liquidation
Co., 428 B.R. at 60-62. Although the liquidation of Old GM may have been unthinkable,
as plaintiffs allege, it is clear that the United States exercised considerable discretion as to
how it would intervene in Old GM’s financial crisis. For this reason, discretionary acts
of the United States affected the “highly contingent” property interests that plaintiffs
allege were taken by the government in the GM bankruptcy.

        Plaintiffs raise only one other substantive challenge to the court’s finding that their
property interest was too contingent, because of the government’s discretionary control
over that property interest, to sustain a takings claim. Plaintiffs argue that the court
improperly applied Acceptance to conclude that their property interest was highly
contingent. ECF No. 35 at 16-17. According to plaintiffs, “Acceptance is
distinguishable . . . because it did not involve Government actions that were necessary --
not discretionary -- to avoid the disastrous national economic consequences that would
result from the liquidation of Old GM.” Id. at 17. Plaintiffs also contend that
Acceptance merely “stands for the unremarkable proposition that an interest in selling
certain products in interstate commerce is not a cognizable property interest for purposes
of the Takings Clause.” Id. (citations omitted). The court does not agree that Campbell
misapplied Acceptance.

        First, as noted supra, plaintiffs’ suggestion that the United States had no discretion
over its intervention in Old GM’s financial crisis is not accurate. Second, the analogy
between the property interest discussed in Acceptance, and plaintiffs’ right to bring
successor liability claims against New GM, is sound. These property interests resembled
each other because neither property right would exist absent a discretionary act of the
government. In Acceptance, the agency would need to abstain from exercising its right to
reject a particular type of sale subject to regulatory approval, and here the federal
government would need to abstain from conditioning the 363 Sale on the extinction of
plaintiffs’ successor liability claims. Campbell, 134 Fed. Cl. at 778-79. Notwithstanding
any factual distinctions that could be drawn between Acceptance and this case, highly
contingent property interests, such as plaintiffs’ right to bring successor liability claims
against New GM, fail to support a takings claim if they are as contingent as the property
interest discussed in Acceptance.9


9
      Nor do plaintiffs address the other precedential cases discussed in Campbell which
show that plaintiffs’ property interests are too contingent to support a takings claim. See
134 Fed. Cl. at 778-79 (citing Bair v. United States, 515 F.3d 1323 (Fed. Cir. 2008);
Adams v. United States, 391 F.3d 1212 (Fed. Cir. 2004)).


                                              13
              3.     Date That Plaintiffs’ Property Interest “Inhered”

       Plaintiffs also challenge the court’s finding that plaintiffs’ property interest arose
at about the same time that it was extinguished by operation of bankruptcy law. As the
court stated in Campbell:

       [A]pplying A & D Auto, the challenged government action in this suit was
       contemporaneous with plaintiffs’ emergent right, created through the
       government bail-out of General Motors and the bankruptcy proceedings, to
       bring successor liability claims against New GM. In these circumstances,
       the powers accorded the bankruptcy court by section 363 inhered in and
       limited plaintiffs’ property interest, because that highly contingent interest,
       from its inception, was targeted for -- and was subject to -- extinguishment
       by the conditions that the government imposed on the 363 Sale. A highly
       contingent property interest of this kind cannot support a takings claim.

134 Fed. Cl. at 776. Plaintiffs argue, instead, that their property interest inhered at the
time of their automobile accidents involving Old GM vehicles. ECF No. 35 at 15-16.

       To the extent that plaintiffs’ arguments in this regard are founded on their
finalized (but unclear) definition of their property interest as their “right to compensation
for bodily injuries,” id. at 14, the court does not accept this formulation as indicative of
the property interest that might have been taken by the United States during the GM
bankruptcy. See supra. The only property interest at issue in this suit is plaintiffs’ right
to bring successor liability claims against New GM. That property interest did not exist
in 1994, 2004 and 2006, when the accidents at issue in this suit occurred. See Campbell,
134 Fed. Cl. at 777-78 & n.12. Plaintiffs’ attempts to repackage the property interest
taken by the United States as a personal injury claim arising under Michigan state law as
early as 1994 does not comport with the facts of the GM bankruptcy, as discussed supra.

        Plaintiffs have not cited any authority that supports their contentions as to when
their property interests inhered. Generic pronouncements as to the nature of property are
not relevant to this issue. Cf. ECF No. 35 at 16 (citing Ruckelshaus v. Monsanto Co.,
467 U.S. 986, 1003 (1984); United States v. Gen. Motors Corp., 323 U.S. 373, 378
(1945)). Nor does plaintiff’s reliance on Aureus Asset Managers, Ltd. v. United States,
121 Fed. Cl. 206, 213 (2015), alter the court’s analysis. ECF No. 35 at 14; ECF No. 39 at
14. Aureus does not address the date when a property interest inheres in a takings claim
plaintiff. None of plaintiffs’ arguments persuade the court that their property interest
inhered before the United States intervened in the GM bankruptcy.




                                              14
              4. Property Interest Not Cognizable under the Takings Clause

        For all of the above reasons, the court finds that plaintiffs’ property interests were
too contingent to support plausible takings claims. The court has considered all of
plaintiffs’ arguments to the contrary, and finds no reason to reconsider its property
interest holding in Campbell or to amend its judgment.10 Because the court’s property
interest ruling in Campbell does not evince legal error, any mistake of fact, or a manifest
injustice, plaintiffs’ motion for the reconsideration of the court’s RCFC 12(b)(6)
dismissal of their claims must be denied.

       C.     Proposed Second Amended Complaint

       In the foregoing analysis of plaintiffs’ motion for reconsideration, the court
considered plaintiffs’ proposed Second Amended Complaint as if it were filed and as if it
superseded the First Amended Complaint. Dismissal of this case under RCFC 12(b)(1)
was still warranted on timeliness grounds, and dismissal of this case, in the alternative
under RCFC 12(b)(6), was still warranted because plaintiffs’ takings claims were not
plausible. The court thus finds that amendment of the complaint would be futile.
Plaintiffs’ motion to amend the complaint, ECF No. 35, must therefore be denied.

V.     Conclusion

       For the reasons stated in this opinion, plaintiffs’ combined motion for
reconsideration, motion to amend the judgment, and motion for leave to file a second
amended complaint, ECF No. 35, is DENIED.

       IT IS SO ORDERED.



                                                s/ Patricia Campbell-Smith
                                                PATRICIA CAMPBELL-SMITH
                                                Judge




10
       The court notes plaintiffs’ disagreement with the distinctions the court drew in
Campbell between the property interests in this case and the property interests discussed
in A & D Auto. ECF No. 35 at 15-16. For the reasons stated in Campbell, plaintiffs’
property interests are more contingent than the contract rights held by the plaintiffs in
A & D Auto. 134 Fed. Cl. at 776-77 & n.12.


                                              15
