     United States Court of Appeals for the Federal Circuit
                                          2009-5048


             EDWARD L. BRIGHT, II, FRED E. EVANS, NANCY A. EVANS,
         EARLEEN FAUVERGUE, CLARENCE FORKNER, RANDY W. FROEBE,
DEBRA J. FROEBE, GENEVA GRUBBS, NORMA LOU HALL, HOMER E. HAMILTON, DEBBIE
   M. HAMILTON, SHIRLEY HENDRICKS, DAVID HOUSER, GAIL HOUSER, PATRICK J.
 O’BRYAN, TRUSTEE OF THE PATRICK J. O’BRYAN REVOCABLE LIVING TRUST UNDER
                  AGREEMENT DATED 9/7/2001, LESTER ROARK,
           DONALD LEE ROPER, II, RICKY D. RUSSELL, B. LORENE SOPER,
  BRADY J. STUART, and ROSE M. STUART, for Themselves and As Representatives of a
                        Class of Similarly Situated Persons,

                                                          Plaintiffs-Appellants,

                                              v.

                                      UNITED STATES,

                                                       Defendant-Appellee.


        Mark F. (“Thor”) Hearne, II, Lathrop & Gage LLP, of St. Louis, Missouri, argued for
plaintiffs-appellants. With him on the brief were Lindsay S.C. Brinton and Meghan S. Largent.

      Kristine S. Tardiff, Attorney, Environment and Natural Resources Division, United
States Department of Justice, of Concord, New Hampshire, argued for defendant-appellee.
With her on the brief were John C. Cruden, Acting Assistant Attorney General; and Kathryn E.
Kovacs, Attorney, of Washington, DC.

        Nancie G. Marzulla, Marzulla Law, of Washington, DC, for amici curiae Klamath
Irrigation District, et al. With her on the brief was Roger J. Marzulla.

       Brent W. Baldwin, Baker Sterchi Cowden & Rice, LLC, of St. Louis, Missouri, for amici
curiae Larry J. Rhutasel, et al. With him on the brief were Steven M. Wald and J. Robert
Sears; and Thomas S. Stewart, of Kansas City, Missouri.

      Helen K. Michael, Howrey LLP, of Washington, DC, for amicus curiae National
Federation of Federal Employees. With her on the brief was John F. Stanton.

Appealed from: United States Court of Federal Claims

Judge Christine O.C. Miller
United States Court of Appeals for the Federal Circuit


                                    2009-5048

          EDWARD L. BRIGHT, II, FRED E. EVANS, NANCY A. EVANS,
     EARLEEN FAUVERGUE, CLARENCE FORKNER, RANDY W. FROEBE,
DEBRA J. FROEBE, GENEVA GRUBBS, NORMA LOU HALL, HOMER E. HAMILTON,
 DEBBIE M. HAMILTON, SHIRLEY HENDRICKS, DAVID HOUSER, GAlL HOUSER,
  PATRICK J. O'BRYAN, TRUSTEE OF THE PARTICK J. O'BRYAN REVOCABLE
    LIVING TRUST UNDER AGREEMENT DATED 9/7/2001, LESTER ROARK,
       DONALD LEE ROPER, II, RICKY D. RUSSELL, B. LORENE SOPER,
BRADY J. STUART, and ROSE M. STUART, for Themselves and As Representatives
                   of a Class of Similarly Situated Persons,

                                                       Plaintiffs-Appellants,

                                        v.

                                UNITED STATES,

                                                       Defendant-Appellee.



        Appeal from the United States Court of Federal Claims in 08-CV-431,
        Judge Christine O.C. Miller.

                          _________________________

                             DECIDED: May 3, 2010
                          _________________________



Before MICHEL, Chief Judge, RADER, and SCHALL, Circuit Judges,

SCHALL, Circuit Judge.


      Plaintiffs-Appellants (“Appellants”) are putative members of a class of

landowners seeking compensation under the Fifth Amendment pursuant to the Tucker
Act, 28 U.S.C. § 1491(a)(1). They seek compensation for the alleged taking of their

respective property interests under the National Trail Systems Act, 16 U.S.C. §§ 1241-

1251 (the “Trails Act”).     The United States Court of Federal Claims dismissed

Appellants’ second amended complaint as to all named plaintiffs other than Earleen

Fauvergue, for lack of subject matter jurisdiction. Fauvergue v. United States, 86 Fed.

Cl. 82 (2009), and erratum (changing “tenets” to “tenet” on page 16) (filed Mar. 18,

2009) (together, “Dismissal Order”). The court did so on the ground that although Ms.

Fauvergue filed a class action complaint and sought class certification prior to expiration

of the six-year limitations period prescribed by 28 U.S.C. § 2501, none of the twenty

other putative class members opted in to the suit as named party plaintiffs prior to

expiration of the period.

       For the reasons set forth below, we hold that when a class action complaint is

filed in the Court of Federal Claims and class certification is sought prior to expiration of

the section 2501 limitations period, the limitations period is tolled. The limitations period

is tolled during the period the court allows potential class members to opt in to the class.

We therefore reverse the judgment of the Court of Federal Claims dismissing

Appellants’ second amended complaint and remand the case to the court for

proceedings on the merits of Appellants’ taking claims.

                                     BACKGROUND

                                             I.

       Appellants’ taking claims arose under the Trails Act. The Trails Act sets out a

statutory scheme pursuant to which unused railroad lines can be converted into

designated trails for recreational uses. See Preseault v. Interstate Commerce Comm’n,




2009-5048                                    2
494 U.S. 1, 5 (1990) (stating that the purpose of the Trails Act is to preserve shrinking

rail trackage by converting unused railroad rights-of-way into recreational trails). We

explained the operation of the Trails Act in Caldwell v. United States, 391 F.3d 1226

(Fed. Cir. 2004).

       The Surface Transportation Board (“STB”) is charged with regulating the

construction, operation, and abandonment of most railroad lines in the United States.

Id. at 1228.    When a railroad seeks to abandon a railroad right of way within the

jurisdiction of the STB, it must either (1) file a standard abandonment application or (2)

seek an exemption from filing such an application. Id. If the STB approves a standard

abandonment application or grants an exemption, and the railroad ceases operation

over the line, the STB relinquishes jurisdiction over the abandoned railroad right of way

and state law reversionary property interests, if any, take effect. Id. at 1228-29.

       Through a process known as “railbanking,” the Trails Act provides an alternative

to abandoning a railroad right of way. Id. at 1229. The Trails Act allows a railroad to

negotiate with a state, municipality, or private group (the “trail operator”) to assume

financial responsibility for operating the railroad right of way as a recreational trail. Id. If

the railroad and the trail operator are willing to negotiate a trail use agreement, the STB

stays the abandonment process and issues a notice allowing the railroad right-of-way to

be “rail-banked.”    Id.   The effect of this notice, if the railroad and prospective trail

operator reach an agreement, is that the STB retains jurisdiction for possible future

railroad use and the abandonment of the corridor is blocked, even though the conditions

for abandonment are otherwise met. Id. Section 8(d) of the Trails Act states: “[S]uch

interim use [for trails] shall not be treated, for purposes of any law or rule, as an




2009-5048                                      3
abandonment of the use of such rights-of-way for railroad purposes.”           16 U.S.C.

§ 1247(d). What this means is that the Trails Act prevents the operation of state laws

that would otherwise come into effect upon abandonment, specifically, property laws

that would “result in extinguishment of easements for railroad purposes and reversion of

rights of way to abutting landowners.” Rail Abandonments—Use of Rights—of—Way

as Trails, Ex Parte No. 274 (Sub-No. 13), 2 I.C.C. 2d 591, 1986 WL 68617 (1986). A

Fifth Amendment Taking occurs if the original easement granted to the railroad under

state property law is not broad enough to encompass a recreational trail. Caldwell, 391

F.3d at 1229.

       The typical railbanking process begins when a railroad files with the STB an

abandonment application or, as in this case, a request for an exemption. Id. at 1230. If

a request for an exemption is filed and the request is approved, the STB publishes a

Notice of Exemption in the Federal Register. Id. A potential trail operator then may file

a railbanking petition pursuant to regulations promulgated by the STB. Id. If the petition

meets regulatory criteria, and the railroad agrees to negotiate with the potential trail

operator, the STB issues a Notice of Interim Trail Use or Abandonment (“NITU”) to the

railroad and to the potential trail operator for the portion of the right-of-way to be

covered by the agreement. Id., citing 49 C.F.R. §§ 1152.29(b)(2) and (d). The NITU

allows the rail carrier to discontinue service and salvage track and other equipment

without an abandonment taking place.        Id.   At the same time, the NITU extends

indefinitely to permit interim trail use once an agreement is reached between the

railroad and the trail operator. Id.




2009-5048                                   4
                                           II.

       The facts pertinent to this case are not in dispute. Appellants are landowners

who allege that the conversion of a railroad line into a public hiking trail under the Trails

Act resulted in a Fifth Amendment taking of their reversionary property interests. The

railroad line at issue ran 28.25 miles between Columbus, in Cherokee County, Kansas,

and Carthage, in Jasper County, Missouri. The line consisted of a 100-foot-plus wide

strip of land that was originally secured by the Memphis Carthage & Northwestern

Railroad Company (the “MCNRC”) in 1876. The MCNRC retained the line until 1980,

when it transferred it to the St. Louis and San Francisco Railroad Company. Eventually,

following a series of mergers, in 1995 that company became the Burlington Northern

and Santa Fe Railway Company (the “BNSF”).

       On May 23, 2002, The STB published a Notice of Exemption filed by the BNSF.

In the Notice, the BNSF sought to abandon the Columbus-Carthage railroad line, based

upon two years of nonuse.        See The Burlington Northern and Santa Fe Railway

Company—Abandonment Exemption—in Cherokee County, KS, and Jasper County,

MO, 67 Fed. Reg. 36,298 (May 23, 2002). On June 21, 2002, the STB issued a NITU

authorizing conversion of the Columbus-Carthage railroad line into a public-access

recreational trail, pursuant to section 8 of the Trails Act. As explained above, the effect

of the NITU was to stay railroad abandonment during the pendency of trail use. A

further effect of the NITU was to accrue an action for compensation by any affected

landowners based on a Fifth Amendment taking. See, e.g., Barclay v. United States,

443 F.3d 1368, 1373 (Fed. Cir. 2006) (“a Trails Act taking begins and a takings claim

accrues, if at all, on issuance of the NITU.”). Thus, the NITU publication date is the date




2009-5048                                        5
on which the six-year limitations period of 28 U.S.C. § 2501 begins to run for a taking

claim under the Trails Act. Caldwell, 391 F.3d at 1235. Under section 2501, “[e]very

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.”

Therefore, as of June 21, 2002, June 21, 2008 was the last day on which any affected

landowner could file a Fifth Amendment taking claim in the Court of Federal Claims

based on the rail-to-trail conversion in this case.

                                             III.

       On June 12, 2008, Ms. Fauvergue filed a class-action complaint in the Court of

Federal Claims under the Tucker Act. In her complaint, she sought, on behalf of herself

and as “representative of a class of similarly situated persons,” compensation for the

value of the land now occupied by the Columbus-Carthage trail and for the diminished

value of the adjoining property. Ms. Fauvergue asserted this claim based on an alleged

physical taking of property by the United States as a result of the rail-to-trail conversion

of the Columbus-Carthage railroad line under the Trails Act. While Ms. Fauvergue filed

the complaint in her name and in anticipation of class-action certification, she was the

only named plaintiff in the complaint. Six days later, on June 18, 2008, she filed a

motion to certify the class with an accompanying memorandum describing the claims of

class members holding fee title to land in Jasper County, Missouri, or Cherokee County,

Kansas.

       On December 11, 2008, the Court of Federal Claims granted leave to amend the

complaint a second time to add twenty putative class members as named plaintiffs,

under Court of Federal Claims Rule (“RCFC”) 23, the rule governing class actions in the




2009-5048                                     6
Court of Federal Claims.     See Fauvergue v. United States, 85 Fed. Cl. 50 (2008).

Thereafter, however, on February 24, 2009, the court granted the government’s motion

to dismiss the second amended complaint as to all named class members other than

Ms. Fauvergue, on the ground that the claims of such plaintiffs were barred by the

statute of limitations. See Dismissal Order, 86 Fed. Cl. at 93.

       In its decision, the court drew a distinction between an opt-in class action, such

as in the Court of Federal Claims under RCFC 23, and an opt-out class action under

Federal Rule of Civil Procedure (“FRCP”) 23. 1 The court stated: “Putative members of

an opt-in class action in the Court of Federal Claims must opt in before the expiration of

28 U.S.C. § 2501. Putative members attempting to opt in after the expiration of 28

U.S.C. § 2501 cannot take advantage of the statutory tolling enjoyed by class members

opting out in federal courts under [FRCP] 23.” See Dismissal Order, 86 Fed. Cl. at 93.

       The court recognized that in American Pipe & Construction Co. v. Utah, 414 U.S.

538 (1974), and Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345 (1983), the

Supreme Court allowed the filing of a timely class-action complaint to toll the applicable

statute of limitations for putative members of the class. Id. at 88-89. American Pipe

and Crown, Cork & Seal both were decided in the context of FRCP 23’s opt-out

procedure. The court also recognized that in Stone Container Corp. v. United States,

229 F.3d 1345 (Fed. Cir. 2000), this court allowed the filing of a timely class action

complaint to toll the applicable statute of limitations in the Court of International Trade


       1
               Under the former, in order to become a class member, an individual must
affirmatively respond to a Rule 23(c)(2) notice to “opt in” by requesting inclusion in the
action. See RCFC 23(c)(2) and (3). Under the latter, all members of a class are
included in the action and are bound by the judgment unless they “opt out” by
affirmatively requesting exclusion. See FRCP 23(c)(2) and (3).


2009-5048                                   7
for putative members of the class. Id. at 90. Stone Container was decided in the

context of Court of International Trade Rule 23 (“CIT Rule 23”), which also involves an

opt-out procedure. This court described the tolling in American Pipe, Crown, Cork &

Seal, and Stone Container as “statutory tolling.” Stone Container, 229 F.3d at 1354.

       The Court of Federal Claims held, however, that class action tolling is not

available in the Court of Federal Claims to allow putative class members to opt into a

suit under RCFC 23 after the expiration of section 2501’s limitations period. The court

based this holding on what it saw as “two significant differences” between the case

before it and American Pipe, Crown, Cork & Seal, and Stone Container. See Dismissal

Order, 86 Fed. Cl. at 93. First, the court reasoned that, unlike FRCP 23 and CIT Rule

23, RCFC 23 is not statutory. The court pointed out that, unlike FRCP 23, RCFC 23

was not transmitted to Congress.        Neither, it pointed out, did    28 U.S.C. § 2501

incorporate by reference the rules of the Court of Federal Claims, as the applicable

statute of limitations in Stone Container incorporated the rules of the Court of

International Trade. Second, the court stated that, in John R. Sand & Gravel Co. v.

United States, 552 U.S. 130 (2008), the Supreme Court defined section 2501 “as being

jurisdictional in nature and more absolute and rigid than other statutes of limitation,

whereas the statutes of limitation in American Pipe, Crown Cork, and Stone Container

have not been characterized in that manner.” Id. The court emphasized that “John R.

Sand & Gravel limits, or even abrogates the ability of the Court of Federal Claims to use

any rule of the court . . . to allow putative class members to opt in after the expiration of

28 U.S.C. § 2501.” Id.




2009-5048                                    8
         The Court of Federal Claims also rejected Appellants’ argument that RCFC 15(c)

supported amending the complaint to add putative class members to the suit. RCFC

15(c) permits an amendment to a pleading to relate back to the date of the original

pleading when the claim “arose out of the conduct, transaction, or occurrence set out—

or attempted to be set out—in the original pleading.” RCFC 15(c)(1)(B). The court

determined that “the relation-back doctrine cannot be used to revive a class-action claim

that is not within the jurisdiction of the Court of Federal Claims.” Fauvergue, 85 Fed. Cl.

at 59.

         Finally, the Court of Federal Claims considered the merits of plaintiffs’ class

certification motion, and rendered an alternative ruling to its dismissal of the suit. In that

ruling, the court determined that the class action plaintiffs had satisfied all four

prerequisites for class certification under RCFC 23(a), as well as the two requirements

of RCFC 23(b) for establishing that a class action can be maintained. 2 The court thus

held that it would have certified the class had it not lacked jurisdiction by reason of the

operation of the statute of limitations. Id. at 101. Final judgment dismissing the claims

of all named plaintiffs except Ms. Fauvergue was entered on February 27, 2009.

Thereafter, Appellants timely appealed. We have jurisdiction pursuant to 28 U.S.C. §

1295(a)(2).




         2
               The court summarized the requirements of RCFC 23(a) and (b) as follows:
(1) numerosity, (2) commonality, (3) typicality, (4) adequacy, and (5) superiority (i.e.,
superiority of a class action to other litigation-management approaches). See Dismissal
Order, 86 Fed. Cl. at 95, citing Curry v. United States, 81 Fed. Cl. 328, 332 (2008);
Barnes v. United States, 68 Fed. Cl. 492, 494 (2005). The court analyzed each of the
elements and found plaintiffs had satisfied all five.


2009-5048                                     9
                                       DISCUSSION

                                            I.

       Before turning to the contentions of the parties and our analysis, it may be helpful

to set forth the pertinent law relating to class actions. In American Pipe, the Supreme

Court adopted the principle of “class action tolling.”        The Court held that “the

commencement of a class action suspends the applicable statute of limitations as to all

asserted members of the class who would have been parties had the suit been

permitted to continue as a class action.” 414 U.S. at 554. The Court expressly found

that rule “in no way inconsistent” with the proper function of a statute of limitations,

because when suit was filed, a defendant would have been notified of the substantive

claims and “also of the number and generic identities of the potential plaintiffs” involved

in the class action. Id. at 554-555.

       American Pipe addressed the post-1966 and close to current-day version of

FRCP 23, which had been significantly overhauled from its original 1938 version. As

noted, FRCP 23 contemplates an opt-out class-action procedure.                Under that

procedure, a determination as to whether an action shall be maintained as a class

action is made by the court “at an early practicable time” pursuant to FRCP 23(c)(1)(A). 3

Thereafter, potential class members “are either nonparties to the suit and ineligible to

participate in a recovery or to be bound by a judgment, or else they are full members

who must abide by the final judgment, whether favorable or adverse.” 414 U.S. at 549.

The prior 1938 version of FRCP 23, which was superseded by the 1966 amendments,


       3
            2003 amendments to FRCP 23 changed the “as soon as practicable”
formulation, as used at the time of American Pipe, to the "at an early practicable time"
current formulation.


2009-5048                                   10
involved an opt-in procedure. Under that procedure, a so-called “spurious” class action

could be maintained where no determination was needed in advance of final judgment

as to which of the potential class members were actual members bound by the

judgment, thereby allowing members of the class to await final judgment before

deciding whether to participate in the action. Id. at 545-47.

       The rule of American Pipe appeared to apply only to purported members of the

class who made timely motions to intervene after the trial court denied class

certification. However, in Crown, Cork & Seal, the Court extended the rule of American

Pipe to all members of the asserted class, including those who subsequently file their

own suits, because tolling properly allows class members to “rely on the existence of

the suit to protect their rights.” 462 U.S. at 350.

       In Stone Container, this court was faced with the question of whether the

two-year statute of limitations of 28 U.S.C. § 2636(i), which is applicable to suits in the

Court of International Trade under 28 U.S.C. § 1581(i), is subject to class action tolling

under CIT Rule 23. The court held that it is. The court first explained that the Supreme

Court’s decisions in “American Pipe and Crown, Cork & Seal were not based on judge-

made equitable tolling, but rather on the Court's interpretation of Rule 23.” 229 F.3d at

1354. Continuing, the court stated that “[b]ecause ‘[a]ll laws in conflict with [the Federal

Rules of Civil Procedure] shall be of no further force and effect after such rules have

taken effect,’ 28 U.S.C. § 2072(b), the Federal Rules of Civil Procedure, like the Federal

Rules of Criminal Procedure, are ‘as binding as any federal statute.’” Id., quoting Bank

of Nova Scotia v. United States, 487 U.S. 250, 255 (1988). The Federal Rules of Civil

Procedure were promulgated by the Supreme Court pursuant to statutory authority and




2009-5048                                    11
were implicitly adopted by Congress after transmission to Congress in their proposed

form. See 28 U.S.C. §§ 2071-2074. In light of this statutory promulgation scheme, the

Supreme Court has held that the Federal Rules of Civil Procedure are deemed to have

“the force [and effect] of a federal statute.” Sibbach v. Wilson & Co., 312 U.S. 1, 13

(1941).   The Stone Container court therefore described tolling under FRCP 23 as

“statutory.” 229 F. 3d at 1354.

       Turning to CIT Rule 23, the court acknowledged that, unlike FRCP 23, it is not

statutory. The court pointed out, however, that the statute of limitations at issue itself

incorporates the rules of the Court of International Trade. Under 28 U.S.C. § 2636(i), an

action under 28 U.S.C. § 1581(i) “is barred unless commenced in accordance with the

rules of the court within two years after the cause of action first accrues.”) Id. (emphasis

in opinion). The Stone Container court therefore rejected the government’s attempt to

distinguish CIT Rule 23 from FRCP 23 “for purposes of American Pipe.” Id. The court

concluded: “Having determined that [CIT] Rule 23 tolling is statutory rather than

equitable, it follows that the rule of American Pipe applies to the government just as it

does to private parties, both generally and in this particular case.” Id.

       In Arctic Slope Native Association, Ltd. v. Sebelius, 583 F.3d 785 (Fed. Cir.

2009), this court again considered the issue of class action tolling against the

government. Arctic Slope, which was decided after the decision of the Court of Federal

Claims in this case, involved Indian tribes and tribal organizations that had provided

health care services to their members under contracts with the Indian Health Service.

The contracts were entered into pursuant to the Indian Self Determination and

Education Assistance Act (“ISDA”), 25 U.S.C. §§ 450-450n. The case before the court




2009-5048                                    12
arose when the Civilian Board of Contract Appeals (“Board”) dismissed certain ISDA

contract claims by the Indian tribes and tribal organizations because the claims were not

presented to the government’s contracting officers within six years after the claims

accrued, as required by section 605(a) of the Contract Disputes Act (“CDA”), 41 U.S.C.

§ 605(a).     1988 amendments to the ISDA made the CDA applicable to disputes

concerning self-determination contracts.

         One of the questions before the Arctic Slope court was whether class action

tolling was available with respect to section 605(a)’s limitations period.           The

government’s position was that, by virtue of the ISDA’s incorporation of CDA

procedures, the temporal scope of the waiver of sovereign immunity was six years, and

that any claim not submitted to a contracting officer within that time period was

jurisdictionally barred from further review, administrative or judicial. 583 F.3d at 791.

The appellant Indian tribes and tribal organizations argued that the six-year

presentment period in section 605(a) could be equitably or legally tolled without

exceeding the limits on the government’s waiver of sovereign immunity. Id. The tribes

and tribal organizations based their claim for legal tolling on the fact that they were

members of putative classes in either of two earlier-filed suits, the Zuni and Cherokee

Nation class actions. They argued that the six-year period for filing their administrative

claims under section 605(a) should be tolled until class certification was denied in those

cases.

         The Arctic Slope court rejected the government’s argument that because the six-

year time limit in section 605(a) is a condition on the waiver of sovereign immunity, the

statute is jurisdictional, and its time period is not subject to class action tolling. The




2009-5048                                  13
court stated: “The government’s contentions that class action tolling cannot apply to a

temporal limitation on actions against the government, and that class action tolling is

‘judge-made’ rather than statutory . . . have no force in light of Stone Container.” Id.

The court dismissed the government’s attempt to distinguish Stone Container as not

involving a “jurisdictional statute of limitations” by explaining that “[t]he limitations statute

at issue in Stone Container . . . constituted a waiver of sovereign immunity and thus

defined the court’s jurisdiction.” Id. at 792-93. Ultimately, the Arctic Slope court denied

the appellants the benefit of class action tolling. The court did so not because the

limitations provision at issue was “jurisdictional” in nature, but rather because the

appellants had failed to exhaust their administrative remedies by timely presenting their

claims to contracting officers as required by 41 U.S.C. § 605(a). See id. at 794-96. The

court thus agreed with the government’s “alternative, and narrower,” argument that the

appellants’ failure to present their claims to contracting officers within six years of

accrual meant that those claims could not have been litigated in the Zuni and Cherokee

Nation class actions even if those suits had been permitted to continue. Id. at 793. The

court noted that a claimant who complied with the administrative claim presentment

requirements “would be eligible to benefit from classwide relief and would presumably

be entitled to class action tolling.” Id. at 797. 4



       4
               The court did, however, conclude that the appellants were potentially
eligible for equitable tolling. The court reasoned that the Supreme Court’s holding in
Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990) applied. In Irwin, the
Court held that “the same rebuttable presumption of equitable tolling applicable to suits
against private defendants should also apply to suits against the United States.” The
Arctic Slope court concluded that “the Irwin presumption applies, which means that we
must assume that Congress intended equitable tolling to be available unless there is
good reason to believe otherwise.” 583 F.3d at 798.


2009-5048                                      14
       American Pipe, Crown, Cork & Seal, Stone Container, and Arctic Slope outline

the framework of class action tolling, as applied both against private parties and against

the government. None of these cases, however, addressed class action tolling of the

limitations period in 28 U.S.C. § 2501 under RCFC 23. Whether class action tolling is

available for opt-in classes in the Court of Federal Claims is an issue of first impression

for this court.

                                             II.

       The question before us is this:

       When a class action complaint is filed in the Court of Federal Claims
       within the six-year limitations period of 28 U.S.C. § 2501 by one named
       plaintiff, are putative class members permitted to opt in under RCFC 23
       after expiration of the limitations period, when class certification was
       sought prior to expiration of the limitations period, but the complaint was
       not amended to add other named plaintiffs as putative class members until
       after expiration of the limitations period?

       As seen, the Court of Federal Claims answered this question in the negative and

dismissed the second amended complaint as to all plaintiffs other than Ms. Fauvergue.

We review the court’s dismissal for lack of jurisdiction and its underlying legal

conclusions without deference. Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1362

(Fed. Cir. 2005); Applegate v. United States, 25 F.3d 1579, 1581 (Fed. Cir. 1994).

       Appellants argue first that the Court of Federal Claims erred in dismissing the

second amended complaint because the timely filing of a class-action complaint itself

commences the action for all persons who eventually opt in to the class. Appellants

contend that no tolling issue arises in this case because the initial timely-filed complaint

asserted the claims of all similarly situated Missouri and Kansas landowners whose

property was subject to the June 21, 2002 NITU and who were subsequently




2009-5048                                   15
determined to be members of the class. Thus, in Appellants’ view, section 2501 was

satisfied for every class member when Ms. Fauvergue filed her complaint on June 12,

2008. See Appellants’ Br. 28. In advancing this argument, Appellants point to the

statement in American Pipe that “the commencement of the action satisfied the purpose

of the limitation provision as to all those who might subsequently participate in the suit

as well as for the named plaintiffs.” 414 U.S. at 551.

       Appellants’ second argument is that the Court of Federal Claims erred by not

suspending or tolling the statute of limitations to allow putative class members to opt in

to the action. Appellants urge that the fact that RCFC 23 is a procedural rule adopted

by the court that cannot extend or limit the jurisdiction of the Court of Federal Claims

does not distinguish it from the Federal Rules of Civil Procedure because neither do

those rules “extend or limit” any court’s jurisdiction; see FRCP 82 (“These rules do not

extend or limit the jurisdiction of the district courts or the venue of actions in those

courts.”). Appellants contend that the Court of Federal Claims incorrectly extended the

John R. Sand & Gravel holding that section 2501 is jurisdictional to proscribe any form

of tolling thereunder, i.e., not only equitable tolling but also class action statutory tolling.

See Dismissal Order, 86 Fed. Cl. at 91; Appellants’ Br. 70, 77-79.

       Appellants argue that because the Supreme Court has read FRCP 23 to permit

statutory tolling in class actions in federal district court, see, e.g., American Pipe and

Crown, Cork & Seal, and because this court has read a corresponding rule (CIT Rule

23) to permit tolling in a class action against the government, see Stone Container, 229

F.3d at 1354, RCFC 23 must operate similarly to permit tolling here. Appellants, along

with several amici curiae, namely, National Federation of Federal Employees; Larry J.




2009-5048                                     16
Rhutasel et al.; and Klamath Irrigation District et al., contend that if this court does not

reverse the decision of the Court of Federal Claims, use of class-action procedures will

be effectively eliminated in the Court of Federal Claims. See, e.g., Appellants’ Br. at 64-

67; National Federation of Federal Employees Br. at 17-19.

       Finally, Appellants contend that the Court of Federal Claims erred by failing to

acknowledge that, by reason of RCFC 15(a), the second amended complaint relates

back to the date of the original complaint for purposes of independently satisfying the

limitations period of section 2501.       Appellants argue that the original class action

complaint identified the same “conduct, transaction, or occurrence” giving rise to the

government’s liability (the issuance of the NITU) that was specified in the second

amended complaint, with the result that Appellants’ claims relating to this general fact

situation should not be time-barred under section 2501. See Appellants’ Br. 86-88.

       The government responds that we should affirm the final judgment of the Court of

Federal Claims.     The government argues first that there is no merit to Appellants’

argument that the filing of Ms. Fauvergue’s complaint on June 12, 2008, satisfied the

statute of limitations as to putative class members and that there thus is no need to

reach the question of whether the filing served to toll the limitations period.

Characterizing this argument as an attempt to “avoid John R. Sand & Gravel,” the

government states that, “to the extent that the filing of the opt-out class action complaint

in American Pipe ‘satisfied’ the applicable statute of limitations, it did so because the

filing operated to toll the statute of limitations,” not satisfy it. See Appellee’s Br. 23-24.

       Turning next to the issue of tolling, the government posits that, while this court

has not yet ruled on whether American Pipe tolling applies to opt-in class actions, the




2009-5048                                     17
answer to the question lies in reconciling RCFC 23 and 28 U.S.C. § 2501. Id. at 30.

Addressing the question on those terms, the government states first that, in John R.

Sand & Gravel, the Supreme Court “reaffirmed that the six-year statute of limitations

applicable to Appellants’ claims is jurisdictional and not subject to equitable tolling.” Id.

at 33. The government goes on to endorse the reasoning of the Court of Federal

Claims that, although John R. Sand & Gravel does not address statutory class action

tolling, its holding “rigidly proscribes any tolling” because of the “absolute nature of the

six-year statute of limitations imposed by § 2501.” Dismissal Order, 86 Fed. Cl. at 91;

Appellee’s Br. 19-20.

       The government elaborates that American Pipe statutory tolling is inapplicable to

section 2501 for several reasons.       First, unlike FRCP 23, which was at issue in

American Pipe, RCFC 23 is not statutory. According to the government, that is because

the procedural rules of the Court of Federal Claims are not transmitted to Congress for

review and approval under 28 U.S.C. §§ 2071-74. Therefore, the government reasons,

they do not carry the weight of a statute enacted by Congress. At the same time, the

government notes that the Court of Federal Claims “cannot, through its acknowledged

rule-making power, expand its jurisdiction beyond the limits prescribed by Congress.”

Rolls-Royce, Ltd. v. United States, 364 F.2d 415, 419 (Ct. Cl. 1966). See Appellee’s Br.

33. Second, the government points out that, in contrast to Stone Container, where the

relevant statute of limitations incorporated CIT Rule 23, section 2501 does not

incorporate RCFC 23.      Third, and in the view of the government most importantly,

neither American Pipe, Crown, Cork & Seal, nor Stone Container involved a statute of

limitations that the Supreme Court had held to be jurisdictional and not subject to tolling.




2009-5048                                    18
See Appellee’s Br. 34-35. With American Pipe and Crown, Cork & Seal in mind, the

government contends that the Supreme Court held tolling available in private actions in

federal court because doing so gave effect to the opt-out class action procedure of

FRCP 23 in a manner that was “in no way inconsistent with the functional operation” of

the statute of limitations at issue.    American Pipe, 414 U.S. at 554-555.           The

government asserts this court used similar reasoning to permit tolling for opt-out class

actions in the Court of International Trade in Stone Container. See 229 F.3d at 1353-

54; Appellee’s Br. 32.

      Finally, the government urges us to reject Appellants’ reliance on the “relation-

back” rule set forth in RCFC 15. Citing Snoqualmie Tribe of Indians v. United States,

372 F.2d 951, 960 (Ct. Cl. 1967), the government states that “[t]he test for determining

whether a claim added by an amendment to a complaint after the statute of limitations

has expired may be related back to the original pleading to avoid the bar of the statute

of limitations is essentially one of notice.”     Appellee’s Br. 44-45.   The government

argues that the relation-back rule of RCFC 15 is not available to Appellants because, in

John R. Sand & Gravel, the Supreme Court made it clear that section 2501 is not the

kind of statute of limitations that seeks primarily to protect defendants against stale or

unduly delayed claims, but rather is the kind of statute of limitations that “seek[s] to

achieve a broader system-related goal, such as . . . limiting the scope of a governmental

waiver of sovereign immunity.” Id., quoting 552 U.S. at 133.

                                           III.

      We first address Appellants’ contention that the filing of the original complaint

satisfied the limitations requirement of section 2501 outright for all putative members of




2009-5048                                  19
the class. We reject this argument. We do so because we are not prepared to extend

non-class action case law, which permits the filing of a complaint to stop the running of

the statute of limitations, see, e.g., Henderson v. United States, 517 U.S. 654, 657

(1996), and FRCP 3 (“a civil action is commenced by the filing of a complaint with the

court”), to cover class actions. It is true that the American Pipe Court stated that “the

commencement of the action satisfied the purpose of the limitation provision as to all

those who might subsequently participate in the suit as well as for the named plaintiffs.”

414 U.S. at 551. The Court made clear, however, that the means by which the action

“satisfied” the limitation provision’s purpose was by “tolling” the running of the statute for

all purported members of the class.          Id. at 553 (“the commencement of the original

class suit tolls the running of the statute for all purported members of the class”). See

also Crown, Cork & Seal, 462 U.S. at 350 (“[t]he filing of a class action tolls the statute

of limitations . . .”) (emphasis added). 5

       Because the Supreme Court chose to describe the appropriate statute of

limitations as being “tolled,” we have referred to “the tolling rule of American Pipe,”

Stone Container, 229 F.3d at 1354; Arctic Slope, 583 F.3d at 791-92, and have framed

the question to be decided as “whether the limitations period was tolled.”             Stone

Container at 1352.      We therefore agree with the Court of Federal Claims and the

government that section 2501 was not satisfied on its face for all putative class

members when Ms. Fauvergue filed her June 12, 2008 class action complaint.




       5
              When a court states that a time period is tolled, it means that it abates, or
stops the running of, the limitations period in question. See Black’s Law Dictionary
1625 (9th ed. 2009).


2009-5048                                      20
                                             IV.

       We turn now to the question of tolling. In that regard, as we have seen, the

decision of the Court of Federal Claims hinged on two points. First, the court drew a

distinction between the opt-out procedure of FRCP 23 and the opt-in procedure of

RCFC 23.      In the court’s view, because RCFC 23 is not statutory and is not

incorporated by reference into 28 U.S.C. § 2501, it cannot support the kind of class

action tolling scheme applied by the Supreme Court in American Pipe. See Dismissal

Order, 86 Fed. Cl. at 89-90. Second, the court stated that section 2501 was viewed by

the Supreme Court in John R. Sand & Gravel “as being jurisdictional in nature and more

absolute and rigid than other statutes of limitation, whereas the statutes of limitation in

American Pipe, Crown, Cork & Seal, and Stone Container have not been characterized

in that manner.” Dismissal Order, 86 Fed. Cl. at 93. Accordingly, the court concluded

that “John R. Sand & Gravel limits, or even abrogates, the ability of the Court of Federal

Claims to use any rule of the court, equitable tool, or ameliorative doctrine to allow

putative class members to opt in after the expiration of 28 U.S.C. § 2501.” Id.

                                             A.

       We consider first the difference between the opt-out procedure of FRCP 23 that

was at issue in American Pipe and the opt-in procedure of RCFC 23. In American Pipe,

the Supreme Court noted that under the prior version of FRCP 23, which embodied an

opt-in procedure, there existed a difference of opinion among federal appeals and trial

courts as to whether parties should be allowed to join or intervene as members of a

“spurious” class after the termination of a limitations period, when the initial class action

complaint was filed before the period had run. 414 U.S. at 549. The court observed




2009-5048                                    21
that “[a] majority of the courts ruling on the question, emphasizing the representative

nature of a class suit, concluded that such intervention was proper.” Id.

       For example, in York v. Guar. Trust Co., 143 F.2d 503 (2d Cir. 1944), rev’d on

other grounds, 326 U.S. 99 (1945), the Second Circuit took the position that the filing of

the initial class action complaint, even in a “spurious” class action, commenced the

action for the class. The court reasoned that to hold otherwise, and deny potential class

members “the benefit, by intervention, of the institution of the suit by plaintiff would be to

convert the Rule into a trap.” 143 F.2d at 528. Likewise, in Escott v. Barchris Constr.

Corp., 340 F.2d 731, 733 (2d Cir. 1965), the court permitted intervention by additional

plaintiffs after the statute of limitations had run because the original action had been

instituted within the statutory period. The court tolled the statute of limitations “for those

in whose behalf the representative action is brought as well as for those who actually

bring the action.” Id. 733-34 (noting “it is certain that the existence of a representative

action which does not have the effect of tolling the statute does constitute a trap.”). The

minority view, the Supreme Court stated, was that “since a spurious class action was

essentially a device to permit individual joinder or intervention, each individual also

participating would have to satisfy the timeliness requirement.” American Pipe, 414

U.S. at 550.

       A split of authority has continued in the wake of American Pipe. In Sperling v.

Hoffmann-La Roche, Inc., 24 F.3d 463, 471 (3d Cir. 1994), the Third Circuit applied

tolling to opt-in class actions under the Age Discrimination in Employment Act




2009-5048                                    22
(“ADEA”). 6 The court did so because “application of principles of legal tolling to a class

action for age discrimination is . . . consistent with the three basic purposes a statute of

limitations serves.” 7 The contrary view is exemplified by Grayson v. K Mart Corp., 79

F.3d 1086 (11th Cir. 1996). There, the Eleventh Circuit reasoned that tolling should not

apply to plaintiffs suing under the ADEA, because “opt-in plaintiffs commence an ADEA

civil action, not when the Complaint is filed, but when the putative plaintiff files a written

consent to opt into the class action.” Id. at 1105.

       Viewing the split of authority both pre- and post-American Pipe, we find ourselves

in agreement with the courts holding that class action tolling is available under an opt-in

scheme. In our view, such a result is most consistent with the objectives which class

action procedures are meant to achieve. See, e.g., Crown, Cork & Seal, 462 U.S. at

361 (reasoning that if the statute of limitations were not tolled by the filing of a class

action, “[t]he result would be a needless multiplicity of actions—precisely the situation

that [FRCP] 23 and the tolling rule of American Pipe were designed to avoid.”); see

also, Escott, 340 F.2d at 733 (stating that the “obvious desirability of avoiding a

multiplicity of actions turns us toward favoring the representative suit and encouraging

its use.”); Basch v. Ground Round, Inc., 139 F.3d 6, 10 (1st Cir. 1998) (“[i]n American


       6
              The ADEA borrows the opt-in class action procedure of the Fair Labor
Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq. 24 F.3d at 464. The court
noted that the relevant statutory provision states that an opt-in class member’s claim for
relief under the FLSA “does not commence until the date the opt-in member’s written
consent to join the representative action is filed.” Id., citing 29 U.S.C. § 256.
       7
                The court identified the “three basic purposes” of a statute of limitations
as, first of all, a “practical and pragmatic device[ ] to spare the courts from litigation of
stale claims, and the citizen from being put to his defense after memories have faded,
witnesses have died or disappeared, and evidence has been lost.” Secondly, limitations
periods “put defendants on notice of adverse claims,” and thirdly, they “prevent plaintiffs
from sleeping on their rights.” Id. at 471-472 (quotations and citations omitted).


2009-5048                                    23
Pipe the Supreme Court balanced the policies served by the class action rule, [FRCP]

23, and the policies served by the statute of limitations.”). In short, we think that, all

other considerations being equal, the laudable goal of avoiding “multiplicity of actions”

should prevail.

                                           B.

        As noted, however, the government urges that, unlike FRCP 23, which was at

issue in American Pipe, RCFC 23 is not statutory and cannot carry the force of law.

And the government notes that the Court of Federal Claims cannot, through its

procedural rules, expand its jurisdiction. See supra Rolls-Royce, 364 F.2d at 419.

      RCFC 23 was promulgated in accordance with the authorization of Congress. 28

U.S.C. § 2503 vests the Court of Federal Claims with the authority to prescribe rules of

procedure governing the conduct of cases in the court, which cases include class

actions. See 28 U.S.C. § 2503(b). “[U]nlike the United States district courts, which lack

the power to promulgate their own rules . . . Congress authorized the Claims Court [the

predecessor of the Court of Federal Claims] to adopt its rules without the need for

supervisory or statutory oversight.” M.A. Mortenson Co. v. United States, 996 F.2d

1177, 1183 (Fed. Cir. 1993).       In M.A. Mortenson, we observed that “[i]t is well

established that a court’s procedural rules promulgated pursuant to statutory

authorization are deemed to have the force and effect of law.” 996 F.2d at 1183-84.

We also addressed the authority of the Court of Federal Claims’ predecessor to

promulgate its rules in Wood-Ivey Sys. Corp. v. United States, 4 F.3d 961 (Fed. Cir.

1993). In that case, we rejected the government’s contention that Claims Court Rule

6(a), dealing with the computation of time, could not apply to the statutory period for




2009-5048                                  24
filing a claim under the CDA in the Claims Court. See 41 U.S.C. § 609(a). We stated

that “Claims Court Rule 6(a) was enacted in accordance with the authorization of

Congress to promulgate rules of procedure. It is an official rule on which the court and

the public must rely.” Id. at 964.

       When, in Stone Container, we accorded CIT Rule 23 tolling force, and applied it

against the government, we relied on the fact that the statute of limitations at issue

incorporated the court’s procedural rules. 229 F.3d at 1354. The Stone Container court

did not speak to the question of whether the court’s rules still would have been given

such force if they had not been so incorporated, but instead had been promulgated

under authority given by Congress.        The M.A. Mortenson court did speak to this

question, however. In reviewing a grant of sanctions against the government under

RCFC 37, we explained that the court’s procedural rules “have the same force and

effect as if expressly included in the statute,” and that that force is “only strengthened

when the rule in question specifically adopts its corresponding FRCP.” M.A. Mortenson,

996 F.2d at 1184 (emphasis added). In M.A. Mortenson we rejected the government’s

argument that the court lacked jurisdiction to enforce its own rules of procedure, finding

“no basis on which to differentiate between the abilities of the federal district courts and

the Court of Federal Claims to [enforce a rule] against the United States pursuant to

either the FRCP or the [RCFC].” Id.

       Stone Container’s holding that the filing of a class action complaint under CIT

Rule 23 can toll the limitations period of 28 U.S.C. § 2636(i), combined with the Court of

Federal Claims-specific teaching of M.A. Mortenson, instructs us to permit the filing of a

class action complaint in the Court of Federal Claims to toll the limitations period of 28




2009-5048                                   25
U.S.C. § 2501. Permitting such tolling comports with the proposition that the rules of

the Court of Federal Claims, which are promulgated pursuant to statutory authorization,

“are deemed to have the force and effect of law.” M.A. Mortenson, 996 F.2d at 1183. It

also comports with the logical goal of having class action procedures in the Court of

Federal Claims operate in a manner consistent with the American Pipe rationale for

class actions.     See American Pipe, 414 U.S. at 555 (“insur[ing] effectuation of the

purposes of litigative efficiency and economy” while giving defendants “the essential

information necessary to determine both the subject matter and size of the prospective

litigation”). By contrast, prohibiting tolling under RCFC 23 in this case would not serve

the purposes of the class action rule. Instead, it would eliminate class actions in the

Court of Federal Claims in instances where suit was filed, and class certification was

sought, before the expiration of section 2501’s limitations period, but the putative class

was not certified before the period expired.      This would increase the likelihood of

multiplicity of suits.

                                            C.

       The government candidly acknowledges the authority of Stone Container, M.A.

Mortenson, and Wood-Ivey.        It argues that these cases do not help Appellants,

however, because they did not involve 28 U.S.C. § 2501 and were decided prior to John

R. Sand & Gravel. As seen, John R. Sand & Gravel was the linchpin of the decision of

the Court of Federal Claims. The court was of the view that John R. Sand & Gravel

“rigidly proscribes any tolling” because of the “absolute nature of the six-year statute of

limitations imposed by § 2501.” Dismissal Order, 86 Fed. Cl. at 91.




2009-5048                                   26
       As this court recently noted en banc, “[t]he issue in John R. Sand & Gravel was

narrow. The Supreme Court stated: ‘The question presented is whether a court must

raise on its own the timeliness of a lawsuit filed in the Court of Federal Claims, despite

the [g]overnment’s waiver of the issue.’” Henderson v. Shinseki, 589 F.3d 1201, 1217

(Fed. Cir. 2009) (en banc), quoting John R. Sand & Gravel, 552 U.S. at 132. The

Supreme Court held in John R. Sand & Gravel that section 2501 requires such sua

sponte consideration, thereby affirming the decision of this court “to ignore the

[g]overnment’s waiver and to decide the timeliness question.” Id. at 133. In so holding,

the Court reasoned that section 2501 is a “jurisdictional” statute of limitations of the type

that “forbids a court to consider whether certain equitable considerations warrant

extending a limitations period.” Id. at 134. John R. Sand & Gravel did not address the

question before us.     That question is whether section 2501’s limitations period is

non-equitably tolled for putative class members under RCFC 23 when a class action

complaint is filed, and class certification is sought, prior to the expiration of the

limitations period.

       In Arctic Slope, we rejected “the government’s sweeping contention that any time

limitation . . . which defines the matters that a board or court may adjudicate . . . is not

subject to class action tolling because that provision is ‘jurisdictional’ in nature.” 583

F.3d at 793. So too here, we reject the notion that John R. Sand & Gravel “rigidly

proscribes” class action statutory tolling of section 2501. See Dismissal Order, 86 Fed.

Cl. at 91.

       In our view, the fact that equitable tolling is barred under section 2501 does not

mean that class action statutory tolling also is barred. The two concepts are different.




2009-5048                                    27
Equitable tolling is a principle that permits courts to modify a statutory time limit and

“extend equitable relief” when appropriate. See Irwin, 498 U.S. at 96 (describing the

range of instances in which courts have applied the equitable tolling doctrine); see also,

Hallstrom v. Tillamook County, 493 U.S. 20, 27 (1989) (a “traditional equitable tolling

principle” should not be applied to a statutory limitations period when “the equities do

not weigh in favor of modifying statutory requirements”). Class action statutory tolling,

on the other hand, does not modify a statutory time limit or “extend equitable relief.”

Rather, it is a procedure that suspends or tolls the running of the limitations period for all

purported members of a class once a class suit has been commenced, in a manner

consistent with the proper function of a statute of limitations. See Arctic Slope, 583 F.3d

at 791 (statutory class action tolling principles permit “the statute of limitations [to be]

suspended during the pendency of the class action proceedings”).

       By the same token, RCFC 23, which has “the force and effect of law,” see M.A.

Mortenson, 996 F.2d at 1183, does not modify a statutory time limit or “extend equitable

relief.” Its procedures can only come into play once a class action complaint has been

filed within the section 2501 limitations period. Neither does tolling of the limitations

period under RCFC 23 turn on “equities,” because such tolling is not triggered by

equitable considerations. See, e.g., Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946)

(equitable considerations apply where a plaintiff has been injured by fraud and remains

in ignorance of it without any fault or want of diligence or care on his part); Glus v.

Brooklyn Eastern Dist. Terminal, 359 U.S. 231, 235 (1959) (equitable considerations

apply when plaintiff was intentionally misled by defendant into letting filing period lapse);

Klehr v. A.O. Smith Corp., 521 U.S. 179, 194 (1997) (equitable tolling warranted when a




2009-5048                                    28
plaintiff does not know of a defendant's fraudulent activity and defendant affirmatively

conceals the activity).   RCFC 23 tolling, on the other hand, serves to facilitate the

objectives of the class action procedure. See, e.g., American Pipe, 414 U.S. at 553,

558 (“the efficiency and economy of litigation . . . is a principal purpose of the [class

action] procedure”). In sum, we are not persuaded by the government’s argument that

allowing class action tolling in this case would be contrary to the statement of the

Supreme Court in John R. Sand & Gravel that 28 U.S.C. § 2501 is “jurisdictional.”

       Moreover, this is not a case in which section 2501’s limitations period was not

satisfied.   Ms. Fauvergue filed her class action complaint prior to the expiration of

section 2501’s six-year period. In addition, she moved for class certification prior to the

expiration of the limitations period. While it is true that no individuals other than Ms.

Fauvergue were named in the original complaint, we are unwilling to hold that that fact

results in section 2501 operating as a bar to their opting in to the action. Such a holding

would create a regime in which prospective class action plaintiffs would be charged with

the task of forecasting when, during the pendency of a class action proceeding, the

class certification process and opt in period would be completed so that section 2501

would be satisfied. See Arctic Slope, 583 F.3d at 791 (noting “it is unknowable at the

time a class action is filed whether the class will be certified”); Sperling, 24 F.3d at 467

(describing the practical problems that would ensue if tolling were not permitted in opt-in

class actions). It also would place on the court the burden of timing class certification

and implementing opt-in procedures in such a way as to make sure that the limitations

period was met. This would be virtually impossible in cases such as this, where suit

was filed late in the period. See, Brief of Amici Curiae Larry J. Rhutasel et al. at 11-12




2009-5048                                   29
(unintentional procedural delays in ruling on class certification would terminate putative

class members’ claims if tolling did not permit putative members to opt in to a

representative suit after the statute of limitations had run).

       Such a holding also would create an anomalous difference between the conduct

of class action litigation under the Tucker Act, 28 U.S.C. § 1491(a)(1), and the Little

Tucker Act, 28 U.S.C. § 1346(a)(2). While the Tucker Act gives exclusive jurisdiction to

the Court of Federal Claims for claims over $10,000, the Little Tucker Act provides

federal district courts with jurisdiction, concurrent with the Court of Federal Claims, for

claims against the government below $10,000.             As the Court of Federal Claims

acknowledged in its Dismissal Order, 86 Fed. Cl. at 88, if section 2501 is not subject to

class action tolling, a situation can exist where one class-action complaint, filed under

FRCP 23 and 28 U.S.C. § 2401 8 in federal district court under the Little Tucker Act, can

cover the putative class, while the same class-action complaint, filed under RCFC 23

and section 2501 in the Court of Federal Claims, cannot provide jurisdiction over the

identical putative class members.

       In this respect, we would be creating a regime in which the class action process

in the Court of Federal Claims was not just different from the class action process in

federal district court (opt-in versus opt-out), but was also so cumbersome and unwieldy

in its operation that, unlike the process in district court, it frustrated the purpose of

avoiding multiplicity of suits. Supreme Court precedent strongly suggests that such a

result, i.e., one in which jurisdictional differences dictate different outcomes in the law, is


       8
               Section 2401 states, in relevant part, that “every civil action commenced
against the United States shall be barred unless the complaint is filed within six years
after the right of action first accrues.” 28 U.S.C. § 2401(a).


2009-5048                                     30
not favored. See, e.g., Dickinson v. Zurko, 527 U.S. 150, 165 (1999) (holding that the

Federal Circuit should not accord less deference to factual findings of the Patent and

Trademark Office than courts accord to the findings of other agencies under the

Administrative Procedure Act); eBay Inc. v. MercExchange LLC, 547 U.S. 388, 390-91

(2006) (holding that application of equitable principles in evaluating requests for

permanent injunctions under the Patent Act should not differ from treatment of

permanent injunctions in other fields of law); MedImmune, Inc. v. Genentech, Inc., 549

U.S. 118, 139-140 (2007) (holding that the standard for assessing whether a justiciable

controversy exists should not be more stringent in lawsuits seeking a declaration of

patent invalidity or noninfringement than in non-patent fields).

       Finally, we agree with the reasoning of the predecessor of the Court of Federal

Claims in Barbieri v. United States, 15 Cl. Ct. 747 (1988). Barbieri involved a Tucker

Act suit in the Claims Court by customs agents working in Key West, Florida. The

National Treasury Employees Union, together with five named individuals, filed a class

action complaint asserting that members of a class of customs agents were entitled to

extra compensation for performing temporary boarding officer services to assist in

searches for Cuban refugees, for the processing of refugees, and for the enforcement of

related immigration laws, all of which they had undertaken in the spring of 1980. Id. at

748. The complaint, filed “in the waning months of [section 2501’s] limitations period,”

stated that suit was being brought on behalf of a class potentially in excess of 80

individuals. Id. at 749.

       The court denied class certification in 1988.           Following denial of class

certification, suit was filed by thirteen unnamed members of the class on whose behalf




2009-5048                                   31
class certification had previously been sought.         Id.   That suit was filed after the

limitations period had run. Accordingly, the court stated that the action was “clearly

time-barred unless . . . the running of the limitations period was tolled for the period that

the motion for class certification remained pending before the court.” Id. Addressing

the question, the court rejected the government’s argument that the second suit was

barred by the statute of limitations, allowing class action tolling for the period that the

motion for class certification remained pending before the court in the first suit. Id. at

749-50.

       Significantly, the Claims Court arrived at its decision even though it agreed with

the government that “governing case law insists upon a strict construction of the court’s

statute of limitations.” Id. at 752. For this rule, the court cited Soriano v. United States,

352 U.S. 270, 276 (1957). The Court in John R. Sand & Gravel reaffirmed the authority

of Soriano. 552 U.S. at 136-37. Thus, although Barbieri was decided prior to John R.

Sand & Gravel, it proceeded under the same premise as that decision—that 28 U.S.C.

§ 2501 is jurisdictional. We agree with Barbieri that allowing class action tolling “does

not involve [the court’s] power to ‘liberalize’ the statute of limitations but rather its power

to avoid a multiplicity of suits through a representative action.” Barbieri, 15 Cl. Ct. at

752, citing Western Cherokee Indians v. United States, 27 Ct. Cl. 1, 54 (1891); aff’d sub

nom, United States v. Old Settlers, 148 U.S. 427, 479-80 (1893).

                                              D.

       Accordingly, we answer as follows the question of first impression presented in

this case. When, as here, a class action complaint is filed within the six-year limitations

period of 28 U.S.C. § 2501 as to one named plaintiff, putative class members are




2009-5048                                     32
permitted to opt in under RCFC 23 after expiration of the limitations period, when class

certification is sought prior to expiration of the period, but the complaint is not amended

to add other named plaintiffs as putative class members until after expiration of the

period. 9 The statute of limitations is tolled during the period the Court of Federal Claims

allows putative class members to opt in to the class. 10        Thus, when a class action

complaint is filed and class certification is sought prior to the expiration of section 2501’s

limitations period, the limitations period is subject to class action tolling during the period

the court allows putative plaintiffs to opt in to the class.

                                        CONCLUSION

       For the reasons set forth above, we hold that the running of the six-year

limitations period of 28 U.S.C. § 2501 was tolled for all putative members of the opt-in

class in this case. We therefore reverse the Court of Federal Claims’ dismissal of the

second amended complaint as to all plaintiffs other than Ms. Fauvergue. We remand

the case for proceedings on the merits of Appellants’ taking claims. 11 Based upon our

disposition of this appeal, it is not necessary for us to address the question of whether

section 2501’s limitations period was satisfied through relation-back under RCFC 15. 12


       9
           We leave for another day the question of whether tolling would be allowed
where class certification was sought after expiration of the limitations period.
       10
            Under RCFC 23, the Court of Federal Claims directs to individual class
members the best notice that is practicable under the circumstances and that clearly
and concisely states, inter alia, “the time and manner for requesting inclusion.” RCFC
23 (c)(2)(B)(vi).
       11
             If, after receiving the views of the parties, the Court of Federal Claims
determines that there are additional putative class members who should be given the
opportunity to opt in to the suit, it can, consistent with this opinion, fashion an
appropriate procedure under RCFC 23.
       12
               As to the Court of Federal Claims’ ruling that the requirements for class
action certification were met, we let it stand at this point. We agree that the government


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                                         COSTS

      No costs.

                             REVERSED and REMANDED




correctly did not seek to challenge the class certification ruling in this appeal. See
Praxair, Inc. v. ATMI, Inc., 543 F.3d 1306, 1322 (Fed. Cir. 2008) (“[a]s we have
repeatedly explained, a party lacks standing to cross-appeal unless it is adversely
affected by the judgment it seeks to challenge”). The government is not precluded from
appealing the certification ruling at a later date if circumstances warrant and it chooses
to do so.


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